Blueprint






CONFIDENTIAL TREATMENT
REQUESTED

 






  Exhibit
10.1



 


 


 



ASSET PURCHASE AND LICENSE AGREEMENT


 


 


 



by and between


 


 


 


 



BOEHRINGER INGELHEIM INTERNATIONAL GMBH


 


 



and


 


 



MABVAX THERAPEUTICS HOLDINGS, INC.


 



and


 


 



MABVAX THERAPEUTICS, INC.


 


 


 


 


 


 


 


 


 



BII Contract No: [***]


 


 


 


 


 


 


 


 


 


 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.









CONFIDENTIAL TREATMENT
REQUESTED

 










 



Table of Contents


 

 


	

Clause


 

	
 

	

Page


 


	


1.


 

	


DEFINITIONS


 

	


3


 


	


2.


 

	


SALE AND PURCHASE OF THE ACQUIRED ASSETS


 

	


10


 


	


3.


 

	


LICENSE GRANT


 

	


10



 


	


4.


 

	


[***] RIGHTS


 

	

10


 


	


5.


 

	


PAYMENT


 

	


11



 


	


6.


 

	


CLOSING


 

	


13



 


	


7.


 

	


REPRESENTATIONS AND WARRANTIES


 

	


13



 


	


8.


 

	


COVENANTS


 

	


17



 


	


9.


 

	


TREATMENT OF CONFIDENTIAL INFORMATION


 

	


21



 


	


10.


 

	


CONDITIONS TO MABVAX’S OBLIGATION TO CLOSE


 

	


22



 


	


11.


 

	


CONDITIONS TO BII’S OBLIGATION TO CLOSE


 

	


22



 


	


12.


 

	


INDEMNITY AND LIMITATIONS OF LIABILITY


 

	


23



 


	


13.


 

	


DISPUTE RESOLUTION


 

	


25



 


	


14.


 

	


TERM, EXPIRATION, AND TERMINATION


 

	


26



 


	


15.


 

	


MISCELLANEOUS


 

	


28



 







 


 


 


 




 





 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



ASSET PURCHASE AND
LICENSE AGREEMENT


 


This
Asset Purchase and License Agreement (the “Agreement”) is made on July 4,
2018 (the “Effective
Date”) under the terms and conditions herein by and
between Boehringer Ingelheim
International GmbH having a principal place of business at
Binger Strasse 173, 55216 Ingelheim, Germany, (hereinafter referred
to as “BII”),
MabVax Therapeutics Holdings,
Inc., a corporation organized and existing under the laws of
Delaware, USA, having its principal place of business at 11535
Sorrento Valley Road, Suite 400, San Diego, California 92121, and
MabVax Therapeutics Inc., a
corporation organized and existing under the laws of Delaware, USA,
having its principal place of business at 11535 Sorrento Valley
Road, Suite 400, San Diego, California 92121 (MabVax Therapeutics
Holdings, Inc., and MabVax Therapeutics Inc. hereinafter referred
to as “MABVAX”).


 



RECITALS


 


WHEREAS, MABVAX owns or controls
certain assets relating to [***] as further defined herein;
and


 


WHEREAS, BII is a pharmaceutical
company engaged in the research, development and commercialization
of products useful in the treatment of human and animal diseases
and conditions; and


 


WHEREAS, MABVAX wishes to sell to BII
and BII wishes to purchase from MABVAX the Acquired Assets as
defined herein.


 


NOW, THEREFORE, the Parties agree as
follows:


 



1. 

DEFINITIONS





 



1.1 

Except as expressly
set forth herein, capitalized terms used in this Agreement, whether
used in the singular or plural, shall have the meanings set forth
below:





 



1.1.1 

“Accounting Standards”
shall mean the maintenance of records and books of accounts in
accordance with International Financial Reporting Standards (IFRS)
or Generally Accepted Accounting Principles (GAAP) or those
accounting standards used in accordance with the German
Handelsgesetzbuch (HGB), which standards or principles (as
applicable) are currently used at the relevant time, and
consistently applied by the applicable Party.





 



1.1.2 

“Acquired Assets” shall
mean all of MABVAX’s right, title and interest in and to all
of the assets owned or controlled by MABVAX relating solely and
exclusively to the [***], consisting of (a) all [***] Patents, (b)
all [***] Know-How, (c) all [***] Inventory, and (d) all Books and
Records and Patent Files.





 



1.1.3 

“Action” shall mean any
dispute, controversy, claim, action, litigation, suit, cause of
action, arbitration, mediation, oppositions, interferences or any
proceeding by or before any mediator, arbitration panel or
Governmental Entity, or any investigation, subpoena, or demand
preliminary to any of the forgoing.





 



1.1.4 

“Affiliate” means any
corporation, firm, limited liability company, partnership, or other
entity that directly or indirectly controls, or is controlled by,
or is under common control with a Party. For the purpose of this
definition only, “control” means ownership, directly or
through one or more Affiliates, of fifty percent (50%) (or such
lesser percentage which is the maximum allowed to be owned by a
foreign entity in a particular jurisdiction) or more of the shares
of stock entitled to vote for the election of directors in the case
of a corporation, or fifty percent (50%) (or such lesser percentage
which is the maximum allowed to be owned by a foreign entity in a
particular jurisdiction) or more of the equity interests in the
case of any other type of legal entity, or status as a general
partner in any partnership, or any other arrangement whereby a
Party controls or has the right to control the board of directors
or equivalent governing body of a corporation or other
entity.





 




 

-3-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



1.1.5 

“Applicable Law” means all
applicable statutes, ordinances, regulations, rules, orders or
guidance of any Regulatory Authority or other Governmental Entity
or court of competent jurisdiction that may be in effect from time
to time.





 



1.1.6 

“Assignment and Assumption
Agreement” shall mean the general assignment and
assumption agreement to be executed by the Parties at Closing,
substantially in the form attached as Exhibit
A.





 



1.1.7 

“Assumed Liabilities”
shall have the meaning as defined in Section
2.2.





 



1.1.8 

“Authorization” shall mean
any legally required consent, authorization, approval, order,
license, certificate or permit of or from, or declaration or filing
with, any Governmental Entity, including without limitation, any
legally required filing with any Governmental Entity and the
subsequent expiration of any legally required waiting period under
any antitrust laws.





 



1.1.9 

“Bill of Sale” means the
bill of sale to be executed by the Parties at Closing,
substantially in the form of Exhibit
B.





 



1.1.10 

“BII Product” shall mean
any pharmaceutical product developed by or on behalf of BII using
the Acquired Assets.





 




1.1.11 

“Books and Records” shall
mean all of MABVAX’s right, title, and interest in all books,
records and other documents used for and solely and exclusively
related to [***]. For clarity, Books and Records shall include
original lab notebooks covering [***].





 



1.1.12 

“Business Day” shall mean
any day other than a Saturday, a Sunday, or a day on which
commercial banks in Frankfurt am Main, Germany, or California, USA
are authorized or required by law to remain closed.





 



1.1.13 

“Calendar Quarter” means a period
of three calendar months ending on March 31, June 30, September 30
or December 31 in any Calendar Year.





 



1.1.14 

“Calendar Year” means each
successive period of twelve (12) months commencing on January 1 and
ending on December 31.





 



1.1.15 

“Claim” shall mean any
Action asserted by MABVAX against BII, or by BII against
MABVAX.





 



1.1.16 

“Clinical Trial” means any
experiment in which a drug or therapy is administered or dispensed
to, or used involving, one or more human subjects (including but
not limited to a Phase I Clinical Trial, and a Phase III
Clinical Trial).





 



1.1.17 

“Closing” shall mean the
closing of the transactions contemplated by this Agreement in
accordance with the terms and upon the conditions set forth in this
Agreement. The date upon which Closing occurs shall be July 5, 2018
(the “Closing
Date”).





 



1.1.18 

“Combination Product”
[***].





 




 

-4-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



1.1.19 

“Commercially Reasonable Efforts”
shall mean efforts [***].





 



1.1.20 

“Confidential Information” shall mean
information and material, which is disclosed or provided in oral,
electronic, written or other tangible or intangible form by a Party
to another Party hereunder [***].





 



1.1.21 

“Co-Packaged Product”
[***].





 



1.1.22 

“Effective Date” shall mean the
date first written above.





 



1.1.23 

“Encumbrance” means
[***].





 



1.1.24 

“Excluded Assets” shall
mean MABVAX’s right title and interest to (a) all cash and
cash equivalents, (b) all trademarks, trade names and logos, (c)
all accounts and notes receivable, and all claims, causes of
action, defenses and rights of offset or counterclaim (at any time
or in any manner arising or existing, whether choate or inchoate,
known or unknown, contingent or non-contingent) not included in the
Acquired Assets.





 



1.1.25 

“Excluded Liabilities” shall have
the meaning set forth in Section 2.2.





 




1.1.26 

“Executive Official” shall mean a
senior official of a Party, identified by each Party in
Schedule 1.1.261.1.26,
which may be updated at any time by providing written
notice.





 



1.1.27 

“Field” shall mean any and
all uses; including diagnosis, treatment, palliation or prevention
of a disease or medical [***] condition in humans
[***].





 



1.1.28 

“First Commercial Sale”
means, in any country within the Territory, the first sale by BII,
its Affiliates or Sublicensees in an arm’s length transaction
of the
first BII Product to a Third Party other than a Sublicensee
in such country in exchange for cash (or some equivalent to which
value can be assigned) after Regulatory Approval for such BII
Product has been granted in such country.





 



1.1.29 

“Generic Competition”
means and shall be deemed to exist in a particular country in the
Territory with respect to a particular BII Product or Combination
Product in a given Calendar Quarter if in such country during such
Calendar Quarter [***] the aggregate unit sales of such
Generic Product in such country, as measured by IQVIA (formerly IMS
Health) standard units sold based on data provided by IQVIA
(formerly IMS Health) or, if such data is not available, such other
reliable data source as reasonably agreed upon by MABVAX and BII.
If no data is commercially available, then the Parties shall agree
upon a methodology for estimating the percentage unit-based market
share of Generic Products in such country.





 



1.1.30 

“Generic Product” means,
with respect to a particular BII Product or Combination Product and
a particular country, (a) any pharmaceutical product (other than
the BII Product or Combination Product, as applicable) that
contains the same active ingredient(s) in a comparable quality and
quantity as such BII Product or Combination Product, as applicable
irrespective of its pharmaceutical form and is approved under an
Abbreviated New Drug Application (ANDA) or under 505(b)(2) of the
United States Federal Food, Drug and Cosmetic Act or any similar
abbreviated route of approval in such country, or (b) any biologic
medicinal product (other than the BII Product or Combination
Product, as applicable) that is a biosimilar of such BII Product,
and, if the BII Product is a component of a Combination Product, a
biosimilar of the Combination Product, and is approved under a
biological product licensure application submitted by any person
under 42 U.S.C. § 262(k) or any similar abbreviated route of
approval in such country.





 




 

-5-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



1.1.31 

“Governmental Entity” shall mean any
arbitrator, court, judicial, legislative, administrative, or
regulatory agency, commission, department, board, or bureau or body
or other government authority or instrumentality or any person or
entity exercising executive, legislative, judicial, regulatory, or
administrative functions of or pertaining to government, whether
foreign or domestic, whether federal, state, provincial, municipal,
or other.





 



1.1.32 

“Improvement” shall mean
any modifications, enhancements or improvements to a compound,
product, technology or Intellectual Property.





 



1.1.33 

“Initiation” means, with
respect to a Clinical Trial, the first dosing of the first human
subject in such Clinical Trial.





 



1.1.34 

“Intellectual Property” shall mean all
rights in Inventions, Patents, priority rights, copyrights, design
rights, trade names, trademarks, service marks, trade secrets,
Know-How, database rights, domain names and all other intellectual
property rights (whether registered or unregistered) and all
applications and rights to apply for any of them, anywhere in the
world.





 



1.1.35 

“Invention” shall mean any
process, method, utility, formulation, composition of matter,
article of manufacture, discovery or finding or improvement that is
conceived and/or reduced to practice, whether patentable or
not.





 



1.1.36 

“Inventor” shall mean
inventorship as determined by applicable (e.g., United States,
European, or German) patent statutes, regulations, and supporting
case law.





 




1.1.37 

“Invoice” means an
original invoice sent by MabVax Therapeutics Holdings, Inc. to BII
with respect to any payment due hereunder, containing the
information and meeting the requirements as set forth in
Schedule 1.1.37, which shall
be modified in the event of a change in the applicable legal
requirements.





 



1.1.38 

“Know-How” shall mean
[***].





 



1.1.39 

“Knowledge” means
knowledge, information, belief or awareness, after reasonable
investigation or diligence, of any MABVAX individuals, officers,
directors and employees who participate in the management or
operation of [***], including without limitation [***] as of the
Closing Date.





 



1.1.40 

“Major Market” means each
of the USA, Germany, the United Kingdom, France, Italy, Spain and
Japan.





 



1.1.41 

“Material Adverse Effect”
means any event, occurrence, fact, condition or change that would
reasonably be expected to be materially adverse to or have a
material adverse effect on (a) the ability of MABVAX to carry out
its obligations under, and to consummate the transactions
contemplated by, this Agreement, or (b) the Assumed Liabilities or
the Acquired Assets, (c) BII’s ability to further exploit the
Acquired Assets, including without limitation the research,
development, commercialization or other exploitation of the
Acquired Assets. For purposes of clarity, none of the following
events, changes or effects, individually or in the aggregate, shall
be considered a Material Adverse Effect: (i) the effect of any
change that generally affects any industry in which BII or MABVAX
operates; (ii) the effect of any changes after the Effective Date
in Applicable Law or accounting rules not uniquely relating to BII
or MABVAX; (iii) any event, change or effect on the business,
assets, or operations of BII’s or MABVAX’s business
primarily caused by, related to or resulting from the announcement
of the transactions contemplated by this Agreement; (iv) the effect
of any change in the United States or foreign economies or
securities or financial markets; (v) the effect of any action taken
by BII or BII’s Affiliate with respect to the transactions
contemplated by this Agreement, other than actions taken pursuant
to the provisions of this Agreement; (vi) the effect of any
Regulatory Approval of a product that could compete with the BII
Products; and (vii) the indirect or consequential effect of any
outbreak of hostilities, acts of war, sabotage or terrorism or
military actions or any escalation or material worsening of any
such hostilities, acts of war, sabotage or terrorism or military
actions existing as of the date hereof.





 




 

-6-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



1.1.42 

“MSK Rights” shall have
the meaning as defined in Section 4.1.





 



1.1.43 

“Net Sales” means,
[***]





 



1.1.44 

[***]






 



1.1.45 

“Oxford Agreement” shall
mean the loan and security agreement between Oxford Finance LLC, a
Delaware limited liability company with an office located at 133
North Fairfax Street, Alexandria, Virginia 22314, (“Oxford
Finance LLC”), certain other lenders, MabVax Therapeutics,
Inc., a Delaware corporation with offices located at 11533 Sorrento
Valley Road, Suite 400, San Diego, CA 92121, and MabVax
Therapeutics Holdings Inc., dated as of January 15, 2016, as
amended, regarding the provision of certain loans to MabVax
Therapeutics Inc. and MabVax Therapeutics Holdings
Inc.





 



1.1.46 

“Patent” shall mean any
and all (a) patents, (b) patent applications, including all
priority applications, provisional and non-provisional
applications, foreign patent application, patent cooperation treaty
(PCT) applications, substitutions, continuations,
continuations-in-part, divisions and renewals, and all patents
granted thereon, (c) all patents-of-addition, reissues,
re-examinations and extensions or restorations by existing or
future extension or restoration mechanisms, including supplementary
protection certificates or the equivalent thereof, (d)
inventor’s certificates, letters patent or (e) any other
substantially equivalent form of government-issued right
substantially similar to any of the foregoing described in
subsections (a)-(d) above.





 



1.1.47 

“Patent Files” shall mean
any and all files, books, records, patent application documents,
inventor assignment agreements and/or inventor reports, MABVAX
claim(s) of invention(s), and all other similar or like information
that solely and exclusively relate to [***] Patents.





 



1.1.48 

“Phase I Clinical Trial”
means a human clinical trial conducted in any country that meets
the requirements of 21 CFR §312.21(a). By way of example and
not limitation, a Phase I Clinical Trial is usually performed as a
single or multiple dose Clinical Trial in healthy volunteers or
patients to assess specific administration, distribution,
metabolism, excretion (ADME), safety and tolerability,
bioavailability/bioequivalence or exploratory efficacy (in the
sense of demonstrating “proof-of-principle”) of an
investigational drug, and the emphasis in Phase I is usually on
safety and tolerability and it is typically used to plan patient
dosing in Phase II Clinical Trials. For clarity, a Phase I Clinical
Trial may also represent the initial phase of a combined Phase
Ib/II Clinical Trial.





 



1.1.49 

“Phase III Clinical Trial”
means a human clinical trial conducted in any country that meets
the requirements of 21 CFR §312.21(c). By way of example and
not limitation, a Phase III Clinical Trial is a large scale
Clinical Trial (usually several hundreds of patients) performed
after preliminary evidence suggesting effectiveness of the drug has
been obtained in Phase II clinical studies, and it is intended to
gather the pivotal information about effectiveness and safety that
is needed to evaluate the overall benefit-risk relationship of the
drug and, along with other clinical trials, to provide an adequate
basis for Regulatory Approval. For clarity, a Phase III Clinical
Trial may also represent the second part of a combined Phase II/III
Clinical Trial.





 



1.1.50 

“Recognized Agent” means
[***].





 




 

-7-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



1.1.51 

“Regulatory Approval”
means both: (a) the technical, medical and scientific licenses,
registrations, authorizations and approvals (including approvals of
NDAs and labelling approvals), and (b) any necessary pricing and/or
reimbursement authorizations and approvals, of any Regulatory
Authority necessary for the distribution, marketing, promotion,
offer for sale, use, import, export or sale of such pharmaceutical
product in such country.





 



1.1.52 

“Regulatory Authority”
means any (a) governmental authority, notified bodies or other
organization in a country or region that regulates the manufacture
or sale of pharmaceutical or medicinal products or medical devices,
including the US Food and Drug Administration (or any succeeding
entity), Japan Pharmaceutical and Medical Device Agency (or any
succeeding entity) and the European Medicines Agency (or any
succeeding entity), and any successors thereto and (b) any other
relevant bodies authorized by Applicable Law to review or otherwise
exercise oversight over marketing authorization applications, other
regulatory filings or regulatory approvals.





 



1.1.53 

“Sublicensees” means a
Third Party, [***] grants a license or sublicense under any rights
transferred to BII under this Agreement to develop or commercialize
BII Products in the Territory. For the avoidance of doubt, if a
Third Party is solely granted the right to perform distribution
activities of BII Products in a country in the Territory, such
Third Party shall be considered a Third Party distributor in such
country.






 



1.1.54 

[***].





 



1.1.55 

“Taxes” shall mean all
forms of preliminary or finally imposed taxation, domestic and
foreign, federal, state, provincial, municipal, or other taxes,
fees, levies, duties and other assessments or charges of whatever
kind (including without limitation, sales, use, excise, stamp,
transfer, property, value added, recording, registration,
intangible, documentary, goods and services, real estate, payroll,
gains, gross receipts, withholding, and franchise taxes) together
with any interest, penalties, or additions payable in connection
with such taxes, fees, levies, duties and other assessments or
charges. 





 



1.1.56 

“Tax Law” shall mean any
applicable law, rule or regulation of any Government Entity, or
judgment, order, writ, decree, permit or license of any Government
Entity of competent jurisdiction that, in each case, relates to
taxes or other similar assessments or charges of any kind
whatsoever (including, but not limited to, withholding on amounts
paid to any person).





 



1.1.57 

“Term”
shall mean the period of time beginning on the Effective Date and
continuing until the expiration or termination of this Agreement,
whichever occurs first in time.





 



1.1.58 

“Territory”
shall mean all of the countries in the world, and their territories
and possessions.





 



1.1.59 

“Third
Party” means a person or entity other than (a) BII or any of
its Affiliates, or (b) MABVAX or any of its
Affiliates.





 



1.1.60 

[***].





 



1.1.61 

[***].





 




 

-8-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



1.1.62 

“[***]
Inventory” shall mean all inventory of product, including but
not limited to [***], wherever located, owned or controlled by
MABVAX, including without limitation all [***].





 



1.1.63 

“[***]
Know-How” shall mean all Know-How, owned by MABVAX that is
solely and exclusively related to [***], including but not limited
to data generated by MABVAX from [***] that are owned by MABVAX and
that solely relates to [***].





 




1.1.64 

“[***]
Patents” shall mean all Patents that are set forth in
Schedule 1.1.63, including all reissues, reexaminations, divisions,
renewals, extensions or supplementary protection certificates,
provisionals, continuations and continuations-in-part thereof (only
to the extent that such continuations-in-part claim inventions
disclosed as required by 35 U.S.C. § 112, in the parent
application thereof) and the like, and all patents issuing on the
foregoing patent applications, in all jurisdictions.





 



1.1.65 

“[***]Patent
Assignment” shall mean the general assignment of [***]
Patents from MABVAX to BII, which will be substantially in the form
attached as Exhibit C.





 



1.1.66 

“Transaction
Documents” shall mean collectively: (a) this Agreement; (b)
[***] Patent Assignment; (c) the Bill of Sale; and (iv) the
Assignment and Assumption Agreement. The phrase “the
consummation of the transactions contemplated by this
Agreement” or such similar phrases includes the execution,
delivery, and performance of the Transaction
Documents.





 



1.1.67 

“Valid
Claim” means [***].





 



1.1.68 

In this Agreement
a reference to:





 



(a) 

a document in the
“agreed form” is a reference to a document in a form
approved and for the purposes of identification signed by or on
behalf of each Party;





 



(b) 

a statutory
provision includes a reference to the statutory provision as
modified or re-enacted or both from time to time before the date of
this Agreement and any subordinate legislation made under the
statutory provision before the date of this Agreement;





 



(c) 

a person includes a
reference to a body corporate body, association or
partnership;





 



(d) 

a person includes a
reference to that person's legal personal representatives and
successors;





 



(e) 

a clause, paragraph
or schedule, unless the context otherwise requires, is a reference
to a clause or paragraph of or schedule to this
Agreement;





 



(f) 

MABVAX and BII may
be referred to herein as a “Party” if singular, and as
“Parties” if plural; and





 



(g) 

The headings in
this Agreement do not affect its interpretation.





 




 

-9-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



2. 

SALE
AND PURCHASE OF THE ACQUIRED ASSETS





 



2.1 

Sale and Purchase. In
accordance with the terms and upon the conditions of this
Agreement, at the Closing, MABVAX will sell, convey, assign, and
transfer to BII, MABVAX’s entire right, title, and interest
in and to the Acquired Assets in the Territory [***], in exchange for payment by BII
of the consideration as described in Sections 5.1 – 5.4, and
BII will purchase, acquire, accept, and assume the Acquired Assets
in the Territory. For the avoidance of doubt, upon transfer of
title to BII or its designee, and subject to the terms and
conditions of this Agreement, BII shall have the sole and exclusive
proprietary right, as against MABVAX, to fully exploit the Acquired
Assets worldwide without restriction, and no rights in the Acquired
Assets shall remain with MABVAX. For the avoidance of doubt,(i) to
the extent books, records and other documents that otherwise
correspond to the definition of Books and Record in accordance with
Section 1.1.11, but do not relate solely and exclusively to
[***], MABVAX will provide
to BII redacted copies [***] paying, performing and
discharging when due, and BII shall not assume or have any
responsibility for [***].





 




2.2 

Assumption and Exclusion of
Liabilities. Upon the terms and subject to the conditions
set forth in this Agreement, BII shall assume, and agree to pay,
perform and discharge when due, any and all liabilities arising
from BII’s ownership, use or operation of the Acquired Assets
or the exploitation of the BII Products after the Closing Date (the
“Assumed
Liabilities”). MABVAX shall retain, and shall solely
be responsible for [***]





 



2.3 

MABVAX Data Room. Within
[***] of the Effective
Date, MABVAX shall make available to BII via the MABVAX Data Room
(to the extent not already made available to BII in the MABVAX Data
Room as of the Effective Date) copies of all: [***] filing documents including
employment agreements providing IP assignment, assignment documents
for all relevant patent applications, lab notebook records,
unpublished patent applications, unpublished patent
wrappers/prosecution histories, agreements relating to the subject
matter, publications and public disclosures, and patents and legal
related matters, and [***]
files, including without limitation publications, manuscripts, and
abstracts, meeting minutes, research plans and program summaries,
reports and presentations, [***], and inventory lists, in each
case (a) and (b), existing as of the Effective Date. In addition,
MABVAX shall provide an external independent Third Party designated
by BII and approved by MABVAX (such approval not to be unreasonably
withheld, delayed or conditioned and provided that such external
independent Third Party shall be subject to customary obligations
to keep MABVAX’s Confidential Information received by it
confidential) with one complete version of the MABVAX Data Room
content as of the Effective Date, using an appropriate storage
media (e.g., CD or USB-stick), solely for the purpose to serve as
evidence of the information provided by MABVAX to BII prior to the
Effective Date.





 



3. 

LICENSE
GRANT





 




3.1 

[***] Know-How and IP. MABVAX hereby grants BII
[***].





 



3.2 

No Implied Right or License.
Except as explicitly provided herein, this Agreement does not
convey any property rights in or imply any license to the use of
any Intellectual Property and/or assets from MABVAX to
BII.





 



4. 

[***]
RIGHTS





 




4.1 

[***] Agreement. Pursuant to the
terms of the research and license agreement between [***] and MabVax Therapeutics, Inc.,
dated [***], as amended
([***] Agreement”),
[***], inter alia, licensed
certain of its biologic materials, intellectual property and
know-how relating to [***]
Rights”) to
MabVax Therapeutics, Inc. as further described
therein.





 



4.2 

Side Agreement. Prior to the
Closing, the Parties [***]
will execute an agreement (a) confirming that during the term of
[***] Agreement, MABVAX
will continue to be solely responsible for all of its obligations
therein, including but not limited to any and all payment
obligations due by MABVAX [***] and (b) whereby BII and
[***] will not assert
against BII, its Affiliates, Sublicensees or its or their
distributors or independent contractors, any claims for
infringement of [***]based
on the research, development, manufacture, use, sale, offer for
sale or license, or import of the Acquired Assets, and/or any BII
Product in the Field in the Territory (the “Side
Agreement”).





 




 

-10-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



5. 

PAYMENT





 



5.1 

Upfront Purchase Price. The
up-front purchase price for the Acquired Assets shall be
US dollars Four Million (US $4,000,000) (“Upfront Purchase Price”).
Subject to Section 14.4.2 (i)(d), the Upfront Purchase Price shall
be [***].





 



5.2 

Payment of Purchase Price. The Upfront
Purchase Price shall be due and payable upon Closing by BII to
MabVax Therapeutics Holdings Inc. BII will make such payment due
hereunder by wire transfer of immediately available funds within
[***] of the Closing Date
and after the receipt by BII of an original Invoice and of a duly
signed original of this Agreement.





 


[***]
Payments. As
further consideration for the sale and transfer of the Acquired
Assets, BII shall pay to MabVax Therapeutics Holdings Inc. the
following [***] payments (each a [***] Payment”) set forth
below upon [***]

 


	


Milestone Event


 

	

Milestone
Payment


 


	

[***]

	


[***]


 


	

[***]

	


[***]


 


	

[***]

	


[***]


 


	

[***]

	


[***]


 







 



(a) 

[***].





 



5.2.2 

Reports and Payments.
[***].





 



5.2.3 

Financial Audit. [***]
Currency
Conversion. [***] Payments shall be payable in full in US
dollars. Any sales of BII Products incurred in a currency other
than US dollars shall be converted to the US dollars equivalent
using a rate of exchange that corresponds to the rate used by BII
or any of its Affiliates or Sublicensees recording such receipt or
expenditure, for the respective reporting period, related to
recording such Net Sales or expenses in its books and records that
are maintained in accordance with the applicable Accounting
Standards consistently used by BII, its Affiliates or their
respective Sublicensees. If such party is not required to perform
such currency conversion for its respective Accounting Standards
reporting with respect to the applicable period, then for such
period such party shall convert its amounts received and expenses
incurred into US dollars using exchange rates published by the
European Central Bank (ECB), Frankfurt, Germany. For exchange rates
not published by ECB an alternative source will be agreed between
the Parties. Any Earn-Out-Payment shall be calculated based upon
the US dollars equivalent calculated in accordance with the
foregoing.





 




 

-11-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



5.3 

Payment Terms. BII shall pay
all amounts payable under this Agreement as stated in the
respective sections, upon delivery to BII of an Invoice for such
amounts by MabVax Therapeutics Holdings Inc.. All payments to be
made by BII to MabVax Therapeutics Holdings Inc. under this
Agreement shall be made in US dollars and may be paid by bank wire
transfer in immediately available funds to such bank account as may
be designated by MabVax Therapeutics Holdings Inc. from time to
time.





 



5.4 

Taxes in general. Subject to
Section 5.7, all payments under or in connection with this
Agreement shall be inclusive of any Taxes and each Party shall be
responsible for and shall bear, pay or set-off its own Taxes
assessed by a tax or other authority except as otherwise set forth
in this Agreement.





 



5.5 

VAT. All payments due to the
terms of this Agreement are expressed to be exclusive of value
added tax (VAT) or similar indirect taxes (e.g. goods and service
tax). VAT/indirect taxes shall be added to the payments due to the
terms if legally applicable.





 



5.6 

Withholding Tax. If Applicable
Laws or regulations require withholding by BII and/or its
Affiliates of any taxes imposed upon MabVax Therapeutics Holdings
Inc. on account of any Earn-Out Payments and other payments paid
under this Agreement to benefit of MABVAX, such taxes have to be
retained by BII and/or its Affiliates as required by local law from
such remittable royalty and other payment and shall be paid by BII
and/or its Affiliates to the proper tax authorities on account of
MabVax Therapeutics Holdings Inc. Official receipts of payment of
any retained local withholding tax shall be secured and sent by BII
and/or its Affiliates to MabVax Therapeutics Holdings Inc. as
evidence of such payment only on MabVax Therapeutics Holdings
Inc.’s request. The Parties shall cooperate and exercise
their best efforts to ensure that any withholding taxes imposed on
MabVax Therapeutics Holdings Inc. are reduced as far as possible
under the provisions of any relevant double tax treaty. Withholding
taxes retained by BII and/or its Affiliates and paid to the proper
German/local tax authorities as well as a possible refund of
retained and paid local withholding taxes from the German/local tax
authorities in favor of MabVax Therapeutics Holdings Inc. are paid
in local/German currency (Local currency/EUR). Any effect by
currency conversion is benefit or burden of MabVax Therapeutics
Holdings Inc. as tax-payer and are not refundable or taken by BII
and/or its Affiliates.





 



5.7 

Interest on Late Payments. If
BII fails to pay any payment due under this Agreement as provided
herein on or before the date such payment is due, then such late
payment will bear interest, to the extent permitted by Applicable
Law, at an annual rate of [***] above the 1 month EUR LIBOR rate
which applied on the due date effective for the first date on which
payment was delinquent and calculated for the exact number of days
in the interest period based on a year of three hundred sixty (360)
days (actual/360). If the LIBOR is no longer published, the Parties
will agree upon another internationally recognized rate which has
historically been substantially equivalent to the 1 month EUR LIBOR
rate and utilize such rate retroactively to such time as the rate
was no longer available.





 



5.8 

Loss or Damage to the Acquired
Assets. Prior to the Closing, any loss or damage to the
Acquired Assets shall be the sole responsibility of
MABVAX.





 



5.9 

Commercially Reasonable
Efforts. BII shall use Commercially Reasonable Efforts to
advance the development of at least one (1) BII Product
[***].





 




 

-12-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



5.10 

Side Agreement. Notwithstanding
anything to contrary in this Agreement, the Parties agree, that in
[***] under this
Agreement.





 



6. 

CLOSING
ACTIONS
TO BE TAKEN PRIOR TO OR AT CLOSING. ON OR AFTER THE EFFECTIVE DATE AND
PRIOR TO OR AT CLOSING, MABVAX SHALL DELIVER TO BII, DULY
EXECUTED:





 



6.1 

The (a) Bill of
Sale; (b) Assignment and Assumption Agreement, [***] Patent Assignment, [***] Certified copies of any necessary
corporate actions of MABVAX authorizing the execution and
performance of this Agreement and the consummation of the
transaction contemplated herein; and





 



6.2 

Such other
documents as are necessary or desirable for MABVAX and BII to
transfer the Acquired Assets from MABVAX to BII and as far as
applicable the assignment of such documents.





 



6.3 

Interdependence. The transfers
and deliveries described in this Article 6 are mutually
interdependent and are to be regarded as occurring simultaneously
as of the Closing Date. Unless agreed otherwise in writing by
MABVAX and BII, no such transfer or delivery shall become effective
until all other transfers and deliveries provided for in this
Article 6 have also become effective. The parties agree that the
failure of MABVAX to transfer and deliver to BII [***] upon Closing in accordance with
Section 8.2.2 shall have no effect on the effectiveness and
validity of the other transfers and deliveries provided for in this
Article 6.





 



6.4 

Time and Place of Closing. Subject to
the satisfaction or waiver of all of the conditions set
forth in Articles 10 and 11, the Closing shall take place on
July 5, 2018. The Parties shall confirm Closing in
writing.





 



7. 

REPRESENTATIONS
AND WARRANTIES





 




7.1 

MABVAX represents
and warrants to BII as of the Effective Date and as of the Closing
Date, except as disclosed in a disclosure schedule (the
“Disclosure
Schedules”), that





 



7.1.1 

Authority. MABVAX has the power
and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. All corporate
proceedings on the part of MABVAX that are necessary to approve and
authorize the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have occurred,
and assuming proper execution and delivery by BII, this Agreement
is enforceable against MABVAX in accordance with its terms. Each
Transaction Document will be enforceable in accordance with each of
its terms upon execution and delivery to BII, in each case, subject
to [***] Finder’s
Fees. Except for those listed in Schedule 7.1.2, MABVAX has no
liabilities or obligations to pay any fees or commissions to any
broker, finder, or other agent with respect to the transactions
contemplated by this Agreement for which BII could become liable or
obligated. For clarity, the finder’s fee listed in Schedule
7.1.2 is borne by MABVAX.





 



7.1.2 

Authorizations. No
Authorization is needed by MABVAX for the execution, delivery, or
performance of this Agreement and the consummation of the
transactions contemplated hereby, except where the failure to
obtain such Authorization will not have a Material Adverse Effect
on this Agreement or the consummation of the transactions
contemplated hereby.





 



7.1.3 

Litigation and Claims. In the
Territory, there is no Action pending or involving MABVAX, or to
the Knowledge of MABVAX, threatened against MABVAX related to the
Acquired Assets before any Governmental Entity. MABVAX has settled
or will settle any claims of inventors relating to the Acquired
Assets and no remuneration is due or otherwise payable to the
inventor(s) of the Acquired Assets, including any compounds,
whether or not such compounds are subject to existing patents,
patent filings, or patent applications that may be filed by BII
subsequent to the Effective Date.





 




 

-13-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



7.1.4 

Organization and Good Standing.
MABVAX is a corporation duly organized, validly existing, and in
good standing under the laws of the United States of America and is
duly authorized to do business therein.





 




7.1.5 

Title to Acquired Assets.
MABVAX is the sole owner of the Acquired Assets and has and will
convey to BII good and marketable title to all of the Acquired
Assets free and clear of Encumbrances. Except for Excluded Assets,
the Acquired Assets include all of the tangible properties, Patents
and Know-How and other assets owned by MABVAX that are solely and
exclusively related to [***].





 




7.1.6 

Sufficiency. To the knowledge
of MABVAX, the Acquired Assets and the rights licensed pursuant to
Section 3.1 are all of the assets and rights owned or controlled by
MABVAX which are necessary for BII to conduct [***] in
substantially the manner conducted by MABVAX as of the date hereof,
other than (a) personnel, (b) items generally categorized as
corporate overhead, including [***], buildings and office space,
and (c) the Excluded Assets.





 



7.1.7 

Books and Records. To the
Knowledge of MABVAX the Books and Records are reasonably conceived
in a manner as appropriate in the international pharmaceutical
industry. None of the Books and Records are recorded, stored,
maintained, operated or otherwise wholly or partly dependent on or
held or accessible by any means (including without limitation, an
electronic, mechanical or photographic process computerized or not)
which are not under the exclusive ownership and direct control of
MABVAX. 





 



7.1.8 

Patent Files. To the Knowledge
of MabVax, the Patent Files include all of the material information
necessary for BII to fully exploit the Acquired Assets and are
conceived in a reasonable manner as appropriate in the good
international pharmaceutical industry. To the Knowledge of MABVAX,
none of the material Patent Files is recorded, stored, maintained,
operated or otherwise wholly or partly dependent on or held or
accessible by any means (including without limitation, an
electronic, mechanical or photographic process computerized or not)
which are not under the exclusive ownership and direct control of
MABVAX. 





 



7.1.9 

Violations/Breaches. To the Knowledge of
MABVAX, the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby do not or will
not (a) violate any Applicable Law, (b) result in a breach of any
term of the certificate of incorporation, by-laws or governing
document of MABVAX or (c) result in a breach of any contract,
agreement, or other instrument to which MABVAX is a party, except,
in the case of clause (c), as would not have a Material Adverse
Effect.





 




7.1.10 

[***] Patents and
[***] Know-How





 



(a) 

[***] Patents. To the knowledge of
MABVAX, each of the [***] Patents is valid and
enforceable, and nothing has been done or omitted to be done by
which it may cease to be valid and enforceable or which may
restrict the scope of protection afforded by such [***] Patents,
and/or would justify cancellation, rectification or other
modification of a registration of any of the [***] Patents. All
[***] Patents are legally and beneficially owned solely by MABVAX
[***].





 




 

-14-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 




(b) 

[***] Know-How. All of the [***]
Know-How is legally and beneficially owned solely by MABVAX
[***].





 



(c) 

MABVAX has not
received any written notice of any claim, legal action, proceeding,
judgment or settlement, and to the Knowledge of MABVAX’s
there is no threatened claim, relating to any of the [***] Patents
and/or [***] Know-How, including but not limited to any claim or
opposition as to title, validity, scope of protection,
enforceability, entitlement or otherwise.





 



(d) 

All fees that have
become due and payable, including but not limited to renewal fees,
in respect to any [***] Patents have been paid and all documents,
recordations and certificates in connection with all [***] Patents
currently required to be filed have been filed with the relevant
patent office or other authorities in the United States or foreign
jurisdictions, as the case may be, for the purposes of prosecuting,
maintaining and perfecting all [***] Patents.





 



(e) 

There are no Third
Party challenges against the [***] Patents in oppositions, nullity
proceedings, re-examination proceedings or any other proceedings
that are pending. No supplier of any products or services to MABVAX
is a party to or to the best knowledge of MABVAX has threatened
with any civil, criminal, arbitration, administrative or other
claim or proceeding.





 




(f) 

MABVAX has granted
no licenses under and has not assigned [***] Patents and/or [***]
Know-How to Third Parties and no security interests or any other
interests of Third Parties remain in any [***] Patents and/or [***]
Know-How.





 



(g) 

To the Knowledge of
MABVAX, there currently is, and has not been, no infringement of
any or the [***] Patents.





 




7.1.11 

Compliance with Applicable Laws. The [***]
is being conducted in compliance with all Applicable Laws, and has
not received any written communication from any Governmental Entity
within the Territory that alleges the [***] is not in such
compliance.





 




7.1.12 

Permits. MABVAX possesses all
licenses, permits, and other approvals from Governmental Entities
necessary to enable them to carry on the [***] as it is currently
conducted (collectively, “Government
Permits”),





 



7.1.13 

Third Party Rights. To the knowledge of
MABVAX, the exploitation of the Acquired Assets does not infringe
any Patent or other Intellectual Property Right of MABVAX or a
Third Party and there are no existing or threatened claims from
third parties regarding the exploitation of the Acquired Assets nor
any contractual obligations or governmental directions, orders or
other regulations from any Governmental Entity restricting the
exploitation of the Acquired Assets.





 



7.1.14 

To the Knowledge of
MABVAX, all material Confidential Information owned or used by
MABVAX that is related to the Acquired Assets are accurately
recorded and accessible by and comprehensible to a reasonable
person experienced in the development, manufacture and marketing of
pharmaceutical or medicinal products. To the Knowledge of MABVAX,
it is not a party to a confidentiality or other agreement that
restricts the use or disclosure of information solely and
exclusively relates to the Acquired Assets. MABVAX has not
disclosed, except under appropriate confidentiality and non-use
obligations, any Confidential Information that relates to the
Acquired Assets to Third Parties.





 




 

-15-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



7.1.15 

Complete Information. To the Knowledge of MABVAX,
all material information given by, or on behalf of, MABVAX or to
BII, its advisers or agents before and/or during the negotiations
leading to this Agreement and including all information set out in
this Agreement and any of the Schedules attached to this Agreement,
is true, complete, accurate and not misleading. To the Knowledge of
MABVAX, all information about the Acquired Assets that might be
material for disclosure to a purchaser of the Acquired Assets have
been disclosed to BII. As far as MABVAX is aware, no information
which it reasonably believes to be material regarding the Acquired
Assets (in particular its financial condition, developments,
prospects and liabilities) has not been disclosed to
BII. 





 



7.1.16 


Effects of Sale. Neither the execution nor performance of this
Agreement or a document to be executed at or before Closing
will:





 



(a) 

result in MABVAX losing the benefit of a permit
or an asset, license, grant, subsidy, right or privilege which it
enjoys at the Effective Date in any jurisdiction relating to the
Acquired Assets;
or





 



(b) 

conflict with, or result in a breach of, or give
rise to an event of default under, or require the consent of a
person under, or enable a person to terminate, or relieve a person
from an obligation under, an agreement, arrangement or obligation
relating to the Acquired Assets to which MABVAX is a party or a
legal or administrative requirement in any
jurisdiction.





 



7.2 

BII
represents and warrants to MABVAX as of the Effective Date and as
of the Closing Date that:





 



7.2.1 

Authority. BII has the power
and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. All corporate
proceedings on the part of BII that are necessary to approve and
authorize the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have occurred,
and assuming proper execution and delivery by MABVAX, this
Agreement is enforceable against BII in accordance with its terms,
and the other Transaction Documents will be enforceable in
accordance with their terms upon execution and delivery to MABVAX,
in each case, subject to (a) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors
rights and remedies generally, and (b) the remedy of specific
performance and injunctive and other forms of equitable
relief.





 



7.2.2 

Authorizations. No
Authorization is needed by BII for the execution, delivery, or
performance of this Agreement and the consummation of the
transactions contemplated hereby, except where the failure to
obtain such Authorization will not have a Material Adverse Effect
on this Agreement or the consummation of the transactions
contemplated hereby.





 



7.2.3 

Organization and Good
Standing. BII is a corporation duly organized, validity
existing, and in good standing under the laws of Germany, and is
duly authorized to do business therein.





 



7.2.4 

Violations/Breaches. To the
Knowledge of BII, the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby do not
violate any law, rule or regulation or order, judgment, or decree
within the Territory binding on BII, and will not result in a
breach of any term of the certificate of incorporation, code of
regulation or by-laws of BII or of any contract, agreement, or
other instrument to which any of BII is a party.





 



7.3 

If not otherwise
set forth herein the warranty shall be in line with Applicable
Law.





 




 

-16-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



8. 

COVENANTS





 



8.1 

Operation of the [***] Prior to Closing. Except for
actions taken pursuant to the prior consent of BII, MABVAX from the
Effective Date until Closing will:





 



8.1.1 

Conduct the [***]
in the ordinary course; and





 



8.1.2 

Not transfer [***]
any of the Acquired Assets; and





 



8.1.3 

Maintain all [***]
Patents and [***] Know-How, including but not limited to the
maintenance and prosecution of [***] Patents; and





 



8.1.4 

Continue to meet
the contractual obligations of, and pay obligations relating to the
Acquired Assets; and





 



8.1.5 

Not start
litigation or arbitration proceedings relating to [***];
and





 



8.1.6 

Notify BII
immediately if it becomes aware of a fact or circumstance which
constitutes a breach of Section 8.1 or has caused, or will or might
cause, a warranty to become untrue, inaccurate, incomplete or
misleading at any time before Closing; and





 



8.1.7 

Non-Impairment. MABVAX
will not act to impair the value of, or BII’s interest in,
the Acquired Assets, and will not use or infringe any Acquired
Assets in conducting its businesses in the Territory. In
particular, MABVAX will not abandon any of the [***] Patents,
cancel or narrow claims in any [***] Patent, oppose any [***]
Patents, challenge any [***] Patents in nullity proceedings,
re-examination proceedings or otherwise challenge the validity or
enforceability of any of the [***] Patents. 





 



8.1.8 

Efforts to Close. With respect
to efforts to close, MABVAX and BII agree the following: MABVAX and
BII will cause all of the conditions, as specified in Articles 10
and 11 of this Agreement, to the obligations of the others to
consummate the transactions contemplated hereby, within [***] of
the Effective Date of the Agreement.





 



8.1.9 

MABVAX and BII will
comply fully with all applicable notification, reporting, and other
requirements of any applicable antitrust laws.





 



8.1.10 

MABVAX and BII
will each use all reasonable efforts to obtain, as soon as
practicable, the Authorizations that may be or become necessary for
the performance of their obligations under this Agreement and the
consummation of the transactions contemplated hereby, if any, and
will cooperate fully with each other in promptly seeking to obtain
such Authorizations.





 



8.2 

Transfer of Acquired
Assets.





 




8.2.1 

[***] after the
Effective Date, and in all cases by the Closing Date should the
Closing Date fall within the above [***], MABVAX shall make
available to BII, or a party designated by BII, all Books and
Records and Patent Files. To the extent books, records and other
documents that otherwise correspond to the definition of Books and
Record in accordance with Section 1.1.11, [***], MABVAX will
provide to BII redacted copies of such books, records and other
documents, and to the extent patent files that otherwise correspond
to the definition of Patent Files in accordance with Section
1.1.44, [***]. MABVAX will store the originals of the Books and
Records, including but not limited to original lab notebooks, for
[***]. Any copies of the Books and Records and Patent Files shall
be shipped to the address of BII at:





 




 

-17-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



Books and Records:


[***]


 



Patent Files:


[***]


 




8.2.2 

[***] after the
Effective Date, and in all cases by the Closing Date should the
Closing Date fall within the above [***], MABVAX shall make
available to BII, or a party designated by BII, all [***]
Inventory, provided, at BII’s sole option, MABVAX may destroy
any such [***] Inventory in lieu of transferring such [***]
Inventory to BII in accordance with this Section
8.2.2.





 



8.2.3 

On the Closing
Date, MABVAX shall make all other Acquired Assets, including but
not limited to copies of file wrappers for the [***] Patents and
written or tangible embodiments of the [***] Know-How, available to
BII, and will provide copies of technical information used by
MABVAX or Third Parties acting on MABVAX’s behalf in the
research work related to the [***], to the extent assigned by
MABVAX to BII pursuant to this Agreement. Such other documentation
shall be provided in the format as used by MABVAX or available and
existing as of the Closing Date and shall be shipped to the address
of BII at:





 


[***]


 



8.2.4 

In the event
certain assets solely and exclusively related to the [***] and
existing as of the Closing Date have not been specified as Acquired
Assets and consequently have not been assigned and transferred to
BII at Closing, MABVAX shall promptly assign and transfer such
other assets once so identified, to BII after Closing and such
other assets so assigned and transferred shall be treated as
Acquired Assets for purposes of this Agreement.





 



8.2.5 

For the assignment
of the [***] Patents, MABVAX shall do all acts necessary to vest in
BII or its designated parties full and unrestricted ownership in
the [***] Patents, including those actions as further described in
Section 8.6.2.





 



8.2.6 

Wrong Pockets; Further
Assurances. After the Closing, in the event that MABVAX
receives or discovers that it is in possession of any asset that is
an Acquired Asset or is otherwise properly due and owing to BII in
accordance with the terms of this Agreement, MABVAX promptly shall
transfer such asset to BII. MABVAX shall provide (at no cost to
BII) reasonable and appropriate scientific expertise to support the
transfer of the technical aspects and Know How related to the
Acquired Assets to BII, for up to eight (8) weeks or a total of
forty (40) hours, whichever is first reached. The time can be
spread across appropriate MABVAX employees, to begin at a time
mutually agreed to by the Parties, and in all cases, to begin
within [***] after the Effective Date.





 



8.3 

Publicity. Any press releases,
financial filings, public announcements or similar publicity with
respect to this Agreement or the transaction contemplated hereby
shall be made upon the mutual consent of the Parties in advance of
publication. Exhibit
D attached
herein sets forth the final press release related to the execution
of this Agreement by both Parties, as approved by each Party for
public announcement on or after the Effective Date.





 




 

-18-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



8.4 

Cooperation in Litigation. For
a period of five (5) years after Closing, MABVAX and BII will, in
the defense of any Third Party Action relating to the Acquired
Assets, communicate to the other Party any facts of which such
Party has knowledge with respect to the Acquired Assets, testify in
any legal proceedings, sign all documents, make all rightful oaths
and declarations, and make available records to the extent
reasonably necessary to permit the effective defense or
investigation of such Action at such other Party’s sole cost
and expense. If information other than that pertaining to the
Acquired Assets is contained in such records and/or other
communication, MABVAX and BII will either agree that such
information may be omitted or redacted by the producing party, or
will enter into appropriate secrecy commitments to protect such
information. For the avoidance of doubt, in the event of MABVAX
bankruptcy and/or liquidation, MABVAX’s Chief Executive
Officer and/or Chief Scientific Officer shall remain available for
the period of time indicated above as reasonably necessary to
permit the effective defense or investigation of any Third Party
Action relating to the Acquired Assets.





 



8.5 

Expenses. Except as otherwise
expressly provided in this Agreement, whether or not the
transactions contemplated by this Agreement are consummated, each
of MABVAX and BII shall bear its own costs and
expenses. 





 



8.6 

Assignment of Patents.





 



8.6.1 

Inventor Compensation. Each of
MABVAX and BII shall compensate each of its own Inventors according
to each of its own internal policy. No Party shall in any way be
responsible or liable for compensating the Inventors of another
Party.





 




8.6.2 

Assignment and Recordation. At
BII’s sole cost and expense, MABVAX will submit the
appropriate assignment documents to the relevant Governmental
Entity, by country, requesting that MABVAX’s entire right,
title and interest in the [***] Patents is transferred and assigned
solely to BII or a party designated by BII. MABVAX shall inform BII
in writing of these above submissions, including, without
limitation providing a copy of all communication sent to and
received from the Governmental Entities, within two (2) weeks of
their submission or receipt, and MABVAX shall on the Closing Date
provide BII with a signed and notarized [***] Patent Assignment.
MABVAX, at BII’s sole cost and expense, shall promptly
execute and deliver further documents and take such further steps
as may reasonably be required to vest in BII the [***] Patents.
Upon BII’s reasonable request and at BII’s sole cost
and expense, MABVAX shall execute and supply documents necessary
for BII’s prosecution and maintenance of the [***] Patents
that BII is unable to obtain without the assistance of MABVAX,
including, but not limited to declarations, affidavits and inventor
assignments, notarization and legalization of documents, if
necessary consularization of a respective country, depose to or
procure the deposing to or swearing of such documents and do any
act or thing and provide any information which may be useful and
necessary for the assignment of the [***] Patents to
BII.





 



8.6.3 

BII shall be
responsible for, and will pay all out-of-pockets expenses (whether
incurred before or after the Closing Date) involved in
notarization, authentication, legalization, and/or consularization
of the signatures of BII’s representatives on [***] Patent
Assignment and other [***] Patent assignment documents, by country,
and recording such assignment documents with the appropriate
Governmental Entities. BII will also be responsible for, and will
pay all expenses (whether incurred before or after the Closing
Date) involved in notarization, authentication, legalization,
and/or consultation of the signatures of MABVAX’s
representatives on the [***] Patent Assignment
documents.





 



8.6.4 

Local Patent Representatives. MABVAX shall
have responsibility, at its own cost to:





 



(a) 

With respect to the
[***] Patents: notify each in writing each of its local patent
representatives in the Territory within [***] of the Closing Date
that: (i) the [***] Patents have been assigned to BII; and (ii) all
future correspondence regarding the [***] Patents should be sent
to:





 




 

-19-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



(b) 

[***] Forward
copies of any correspondence it receives from its local patent
representative or any Governmental Entities regarding the [***]
Patents to BII that it receives before or after the Closing
Date.





 



8.6.5 

Maintenance of [***] Patents.
MABVAX will timely pay all out-of-pocket expenses related to the
maintenance of [***] Patents due between the Effective Date and the
Closing Date. After the Closing Date, BII will be solely
responsible for the maintenance of the TN Program [***] of [***]
Patents after the Closing Date, then MABVAX will forward to BII any
such bills or original invoices for payment by BII and MABVAX shall
have no liability for BII’s failure to timely pay such bills
or invoices.





 




8.6.6 

Prosecution of [***] Patents.
MABVAX will pay all bills and invoices for [***] Patent prosecution
expenses for activities or work completed prior to the Closing Date
and which relate to work performed for the benefit of MABVAX. For
clarity, work, whether performed before or after the Closing Date,
which relates to the transfer of the [***] Patents to BII pursuant
to this Agreement shall not be “work performed for the
benefit of MABVAX”. Upon BII’s written request and at
BII’s expense, MABVAX will be responsible for Prosecuting the
[***] Patents for up to [***] after the Closing Date; provided,
however, that “Prosecuting” solely for
the purposes of this Section 8.6.6 shall mean filing such documents
as may be reasonably necessary to continue the pendency of a patent
application for at least [***] after the filing of such document.
Otherwise, BII will be responsible for Prosecuting the [***]
Patents as of the Closing Date. For a period [***] after the
Closing Date, MABVAX will further cooperate with and reasonably
assist and provide support to BII in relation to the prosecution
and maintenance of [***] Patents, at BII’s request and
expense. In the event that BII does not have legal status in a
[***] Patent because the recordation process has not been
completed, MABVAX shall upon instruction from BII, act on
BII’s behalf and at BII’s expense.





 



8.6.7 

Covenant Not to Sue. MABVAX
hereby agrees that with respect to any Patent or other Intellectual
Property that, on the date of Closing, they own or under which they
have the right to grant licenses, they will not assert against BII,
its Affiliates, Sublicensees or its or their distributors or
independent contractors, any claims for infringement of such Patent
or Intellectual Property based on the research, development,
manufacture, use, sale, offer for sale or license, or import of the
Acquired Assets, and/or any BII Product in the Field in the
Territory.





 



8.6.8 

Non-Compete. After the Closing
Date until [***], MABVAX undertakes to BII that it shall not, and
shall procure that its Affiliates shall not, directly or indirectly
conduct any activity involving [***].





 



8.6.9 

Conditional No Challenge. To
the extent legally enforceable, MABVAX hereby agrees, so long as a
[***] Patent is pending or in force, neither to file any Action
that challenges the validity, enforceability or patentability of
such [***] Patent, nor to support any Third Party to file such an
Action; provided however, that none of the foregoing shall apply to
any Action (including counter-claims) filed by MABVAX in the
defense of an Action brought by BII or its licensees against MABVAX
alleging patent infringement. MABVAX shall bind any of its
assignees to this obligation.





 



8.7 

Additional Records. Within a
reasonable time but no later than [***] after Closing, MABVAX will
provide to BII copies of books, records, or other documents, if
any, which are not Books and Records, but which are necessary for
the operation of [***]. MABVAX may redact from such copies any
information that does not relate to [***] and BII will have the
right to use such copies only in connection with its operation and
ownership of [***].





 




 

-20-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



8.8 

Removal of Assets. All tangible
Acquired Assets will be moved by MABVAX within [***] after Closing
from MABVAX’s to BII’s premises, as listed in Sections
8.2.1 and 8.2.2, at MABVAX’s expense.





 



9. 

TREATMENT
OF CONFIDENTIAL INFORMATION





 



9.1 

Confidential
Information of a Party disclosed by that Party to another Party
under this Agreement shall be received and held in confidence by
the receiving Party and, except with the consent of the disclosing
Party or as otherwise permitted under this Agreement, shall neither
be used by the receiving Party nor disclosed by the receiving Party
to others. For clarity, the terms and the existence of this
Agreement and the Transaction Documents shall be considered
Confidential Information of both Parties. MABVAX shall neither use
nor disclose to Third Parties any Confidential Information related
to the Acquired Assets.





 



9.2 

A receiving Party
may disclose and authorize the use of the disclosing Party’s
Confidential Information (a) to and by its Affiliates, consultants,
advisors, and agents only to the extent necessary to carry out the
Party’s rights and responsibilities under this Agreement, (b)
in the course of the consummation of the transactions contemplated
hereby, or (c) to actual or potential investors, acquirors,
licensees or sublicensees, as applicable, provided however, that
the receiving Party will ensure that said Affiliates, consultants,
advisors, agents, actual or potential investors, acquirors,
licensees or sublicensees, as applicable, are bound to such Party
by obligations of confidentiality and limited use at least as
restrictive as the obligations of such Party under this
Agreement.





 



9.3 

The Parties agree
to take or cause action to be taken to preserve the confidentiality
of Confidential Information received from another Party as it would
customarily take to preserve the confidentiality of its own
Confidential Information, using in all such circumstances, not less
than reasonable care.





 



9.4 

Except as required
by law and subject to Sections 8.3 and 9.2 above, neither Party
will disclose the terms of this Agreement without the written
consent of the other Party.





 



9.5 

In the event
disclosure of Confidential Information is required by Applicable
Law or rules of a security exchange, then the disclosing Party will
provide reasonable advance written notice to the other Party of the
timing, nature, and content, of the anticipated disclosure, and
shall use its reasonable efforts to assist the disclosing Party in
objecting to such request. If the receiving Party is compelled to
disclose any of the Confidential Information pursuant to such legal
or governmental proceeding or Applicable Law or rules, receiving
Party shall use its reasonable efforts to assist disclosing Party
in obtaining confidential treatment for such disclosed Confidential
Information. Any Confidential Information so disclosed shall still
be subject to the terms of this Agreement.





 



9.6 

If this Agreement
is, for any reason, terminated prior to Closing, then BII agrees to
promptly return to MABVAX, or will promptly destroy, any tangible
written, printed, visual or digital media, or any other materials
or substances, containing Confidential Information, including all
copies and excerpts thereof except for one archival copy, to be
retained by BII in a secure manner for archival purposes only. The
return of such media or materials shall not affect the obligations
of BII as to confidentiality or non-use as set forth
herein.





 



9.7 

For the sake of
clarity, any and all of MABVAX’s Confidential Information
included in the Acquired Assets transferred to BII at Closing, with
the exception only of Books and Records which are stored in
accordance with Section 8.2.1 above, which constitute Confidential
Information of both Parties, will no longer be considered
MABVAX’s Confidential Information after Closing, but will
thereupon be BII’s Confidential Information that MABVAX will
be obligated to protect in accordance with the provisions of this
Article 8.





 


 




 

-21-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



9.8 

The Parties
undertake to protect Confidential Information (including but not
limited to patent-relevant, scientific or technical information)
against unauthorized access by Third Parties. If Confidential
Information is communicated via internet mail, use of internet mail
encryption technology is compulsory (for direct communication
between the Parties, BII provides for a suitable technology at
http://guides.boehringer-ingelheim.com/.
free of charge).





 



9.9 

Survival. This Article 9
shall survive the expiry or termination of this Agreement and shall
remain in full force and effect for [***] after the expiry or
termination of this Agreement, except that any the obligations with
respect to Confidential Information that is a trade secret under
Applicable Law shall continue to survive thereafter.





 



10. 

CONDITIONS
TO MABVAX’S OBLIGATION TO CLOSE





 


All
obligations of MABVAX to sell and transfer to BII the Acquired
Assets, to grant the rights under Section 3.1, and to perform any
other action at the Closing are subject to the fulfilment, prior to
or at the Closing, of each of the following conditions, of which
Sections 10.2 and 10.3 may be waived by MABVAX, in whole or in
part, without notice of such waiver to BII.



10.1 

No Injunction/Order. No
preliminary or permanent injunction or other order will have been
issued that would make unlawful the consummation of the
transactions contemplated by this Agreement.





 



10.2 

Performance of BII’s
Obligations. BII will have fully performed all commitments
required by this Agreement to be performed prior to Closing (except
for those which, in the aggregate, will not have a Material Adverse
Effect on this Agreement or the consummation of the transactions
contemplated hereby).





 



10.3 

BII’s Representations and Warranties True. All
representations and warranties of BII contained in this Agreement
will be true and correct as of the Closing, except for those which,
individually or in the aggregate, will not have a Material Adverse
Effect on this Agreement or the consummation of the transactions
contemplated hereby.





 



11. 

CONDITIONS
TO BII’S OBLIGATION TO CLOSE





 


All
obligations of BII to purchase the Acquired Assets, to assume the
Assumed Liabilities, to obtain the rights under Section 3.1, and to
perform any other action at the Closing, are subject to the
fulfilment, prior to or at the Closing, of each of the following
conditions, of which Sections 11.2 and 11.3 may be waived by BII,
in whole or in part, without notice of such waiver to
MABVAX.


 



11.1 

No Injunction/Order. No
preliminary or permanent injunction or other order will have been
issued that would make unlawful the consummation of the
transactions contemplated by this Agreement.





 



11.2 

Performance of MABVAX’s
Obligations. MABVAX will have fully performed all
commitments required by this Agreement to be performed prior to
Closing (except for those which, in the aggregate, will not have a
material adverse effect on this Agreement or the consummation of
the transactions contemplated hereby) and will have tendered at the
Closing, the documents required in Section 6.1.





 




 

-22-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



11.3 

MABVAX’s Representations and
Warranties. All representations and warranties of MABVAX
contained in this Agreement will be true and correct as of the
Closing, except for those which, individually or in the aggregate,
will not have a Material Adverse Effect on this Agreement or the
consummation of the transactions contemplated hereby.





 



11.4 

[***] Agreement.
[***]





 



11.5 

[***].





 



12. 

INDEMNITY
AND LIMITATIONS OF LIABILITY





 




12.1 

Survival of Representations and
Warranties. The representations and warranties of MABVAX
contained in Article 7 of this Agreement and the other Transaction
Agreements shall survive the Closing and MABVAX shall remain liable
in that regard until the date which is twenty-four (24) months
after the Closing with the exception of the representation and
warranties contained in Sections 7.1.6, 7.1.7, 7.1.11(a),
7.1.11(b), and 7.1.11(f), which shall survive the termination and
expiration of this Agreement. The representations and warranties of
BII contained in this Agreement and the other Transaction
Agreements shall survive the termination and expiration of this
Agreement.





 




12.2 

Indemnification by
MABVAX.





 



12.2.1 

Subject to the
terms and conditions of this Agreement, MABVAX will defend and hold
BII harmless from and against all claims, losses, liabilities,
damages, costs, and expenses (including without limitation
reasonable fees and expenses of attorneys incurred in investigation
or defense of any third party Action) as a result of a Third Party
claim arising out of or related to [***].





 



12.2.2 

Promptly, but no
later than [***], after receipt by BII of notice of any third party
Action in respect of which indemnity may be sought against MABVAX
hereunder (for purposes of this Section 12.2.2, a
“BII’s
Assertion”), BII will notify MABVAX in writing of the
BII’s Assertion, but the failure to so notify MABVAX will not
relieve MABVAX of any liability they may have to BII, except to the
extent MABVAX have suffered actual prejudice thereby. MABVAX will
be entitled to participate in and, to the extent MABVAX elects by
written notice to BII [***] after receipt by MABVAX of notice of
such BII’s Assertion, to assume the defense of such
BII’s Assertion, at MABVAX’s own expense, with counsel
chosen by it which will be reasonably satisfactory to BII. With
respect to any such BII’s Assertion, BII will promptly
provide MABVAX with: (i) notice and copies of any documents served
upon BII; and (ii) all reasonable cooperation which MABVAX deem
necessary to defend such BII’s Assertion, including without
limitation, providing MABVAX and their outside attorneys access to
any potentially relevant documents, information, or individuals
within the control of BII, other than any privileged documents. If
business information of BII other than that pertaining to [***] is
contained in such documents or information, MABVAX and BII will
enter into appropriate secrecy commitments to protect such
documents or information. Notwithstanding that MABVAX may have
elected by written notice to assume the defense of any BII’s
Assertion, BII will have the right to participate in the
investigation and defense thereof, with separate counsel chosen by
BII, but in such event the fees and expenses of BII (above those
which would otherwise have been incurred) and such separate counsel
will be paid by BII.





 



12.2.3 

Notwithstanding
anything in this Section 12.2 to the contrary:





 



(a) 

MABVAX will have no
obligation with respect to any BII’s Assertion if, in
connection therewith, BII, without the written consent of MABVAX,
settles or compromises any Action or consents to the entry of any
judgment; and





 




 

-23-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



(b) 

MABVAX will not,
without the written consent of BII with respect to any BII’s
Assertion:





 



(i) 

Settle or
compromise any Action or consent to the entry of any judgment which
does not include as an unconditional term thereof the delivery by
the claimant or plaintiff to BII of a duly executed written release
of BII from all liability in respect of such Action, which release
will be reasonably satisfactory in form and substance to counsel
for BII; and





 



(ii) 

Settle or
compromise any Action in any manner that, in the reasonable
judgment of BII or its counsel, will materially adversely affect
BII other than as a result of money damages or other money
payments.





 



(c) 

Upon the payment of
any settlement or judgment pursuant to this Section 12.2, with
respect to any BII’s Assertion, MABVAX will be subrogated to
all rights and remedies of BII, against any Third Party in respect
of such BII’s Assertion, to the extent of the amount so paid
by MABVAX.





 



(d) 

The indemnity
provided for in this Section 12.2 will be BII’s exclusive
source of recovery against MABVAX with respect to matters covered
by this Section 12.2.





 




12.3 


Indemnification by BII.





 



12.3.1 

Subject to the
terms and conditions of this Agreement, BII will defend and hold
MABVAX harmless from and against all claims, losses, liabilities,
damages, costs, and expenses (including without limitation
reasonable fees and expenses of attorneys incurred in investigation
or defense of any third party Action) as a result of a Third Party
claim arising out of the Assumed Liabilities, and/or a material
breach of an obligation, representation and warranty or covenant of
BII in this Agreement.





 



12.3.2 

Promptly, but no
later than [***], after receipt by MABVAX of notice of any third
party Action in respect of which indemnity may be sought against
BII hereunder (for purposes of this Section 12.3, a
“MABVAX’s
Assertion”), MABVAX will notify BII in writing of the
MABVAX’s Assertion, but the failure to so notify BII will not
relieve BII of any liability they may have to MABVAX, except to the
extent BII has suffered actual prejudice thereby. BII will be
entitled to participate in and, to the extent BII elects by written
notice to MABVAX [***] after receipt by BII of notice of such
MABVAX’s Assertion, to assume the defense of such
MABVAX’s Assertion, at BII’s own expense, with counsel
chosen by it which will be reasonably satisfactory to MABVAX. With
respect to any such MABVAX’s Assertion, MABVAX will promptly
provide BII with: (a) notice and copies of any documents served
upon MABVAX; and (b) all reasonable cooperation which BII deems
necessary to defend such MABVAX’s Assertion, including
without limitation, providing BII and their outside attorneys
access to any potentially relevant documents, information, or
individuals within the control of MABVAX, other than any privileged
documents. If business information of MABVAX other than that
pertaining to [***] is contained in such documents or information,
MABVAX and BII will enter into appropriate secrecy commitments to
protect such documents or information. Notwithstanding that BII may
have elected by written notice to assume the defense of any
MABVAX’s Assertion, MABVAX will have the right to participate
in the investigation and defense thereof, with separate counsel
chosen by MABVAX, but in such event the fees and expenses of MABVAX
(above those which would otherwise have been incurred) and such
separate counsel will be paid by MABVAX.





 




 

-24-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



12.3.3 

Notwithstanding
anything in this Section 12.3 to the contrary:





 



(a) 

BII will have no
obligation with respect to any MABVAX’s Assertion if, in
connection therewith, MABVAX, without the written consent of BII,
settles or compromises any Action or consents to the entry of any
judgment; and





 



(b) 

BII will not,
without the written consent of MABVAX with respect to any
MABVAX’s Assertion:





 



(i) 

Settle or
compromise any Action or consent to the entry of any judgment which
does not include as an unconditional term thereof the delivery by
the claimant or plaintiff to MABVAX of a duly executed written
release of MABVAX from all liability in respect of such Action,
which release will be reasonably satisfactory in form and substance
to counsel for MABVAX; and





 



(ii) 

Settle or
compromise any Action in any manner that, in the reasonable
judgment of MABVAX or their counsel, will materially adversely
affect MABVAX other than as a result of money damages or other
money payments.





 



(c) 

Upon the payment of
any settlement or judgment pursuant to this Section12.3 , with
respect to any MABVAX’s Assertion, BII will be subrogated to
all rights and remedies of MABVAX, against any third party in
respect of such MABVAX’s Assertion, to the extent of the
amount so paid by BII.





 



(d) 

The indemnity
provided for in this Section 12.3 will be MABVAX’s
exclusive source of recovery against BII with respect to matters
covered by this Section 12.3.





 



12.4 

Indemnification
Limitations. The total aggregate amount in respect of which the
Parties shall be liable for indemnification under any provision of
Section 12.2 or 12.3 respectively shall not exceed, in the
aggregate three (3) times the amount actually received by MabVax
Therapeutics Holdings Inc. from BII under this Agreement except for
liabilities arising from or related to acts or omissions of gross
negligence or wilful misconduct by a Party.





 



12.5 

Damage Limitations. In the
event any Claim or Action hereunder results in a Tax benefit or is
an insured loss to the indemnified Party, the indemnifying Party
will be entitled to take a credit against any liability thereunder
in the amount by which any Taxes of the indemnified Party will be
reduced by reason of any deduction or adjustment allowed the
indemnified Party for any payment, settlement, satisfaction of such
claim, as well as in the amount of and to the extent of any
insurance proceeds to which the indemnified Party is entitled. For
purposes hereof, it will be presumed that the maximum possible Tax
benefit is derived in the shortest time period
possible.





 



13. 

DISPUTE
RESOLUTION





 



13.1 

Any Claim arising
out of or related to this Agreement, and/or the Transaction
Documents, including without limitation, any Claim for
indemnification pursuant to Article 12 hereof will be resolved
pursuant to the procedures set forth in this Article
13.





 


 




 

-25-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



13.2 

Should any Claim
arise, MABVAX and BII will first attempt to resolve such Claim
amicably by entering into good faith negotiations by or among their
appropriate employees or officers. Such negotiations will commence
as soon as practicable after MABVAX and BII have each received
written notice of such Claim, but no later than [***] after such
receipt, and will terminate [***] after such
commencement.





 



13.3 

Any Claim which is
not resolved by the procedure set forth in Section 13.2 herein,
will be referred to the Executive Official (or their successor or
designee) of MABVAX and BII. Such negotiations will commence as
soon as practicable after termination of the negotiations described
in Section 13.2, but not later than [***] after any Party provides
written notice to the others that such Claim is not resolved and
that they wish to invoke the procedures set forth in this Section
13.3, and such negotiations will terminate [***] after
commenced.





 



13.4 

Any Claim which has
not been resolved by the procedures set forth in Sections 13.3
shall be finally resolved by binding arbitration in accordance with
the ICC arbitration rules by [***]. No arbitrator shall be an
employee, director or shareholder of either Party or any of their
Affiliates but each shall have substantial experience in commercial
disputes in the pharmaceutical industry. [***]. Place of such
arbitration shall be [***]. The language of the arbitration
proceeding shall be English. The Parties acknowledge that they
desire for any arbitration to be conducted in an efficient, speedy
and economical manner.





 



13.5 

The award for
arbitration shall be final and binding and may be enforced in any
court of competent jurisdiction against either Party.
Notwithstanding the foregoing, the Parties shall each be entitled
either prior to or during arbitration to seek and obtain injunctive
or other equitable relief in any court of competent jurisdiction to
preserve the status quo pending arbitration or to prevent the
breach of this Agreement.





 



13.6 

Except to the
extent necessary to confirm or obtain judgment on an award or
decision or as may be required by Applicable Law, neither Party
may, and the Parties shall instruct the arbitrators not to,
disclose the existence, content, or results of a dispute without
the prior written consent of the other Party.





 



14. 

TERM,
EXPIRATION, AND TERMINATION





 



14.1 

Term. This Agreement shall
become effective as of the Effective Date and shall remain in full
force and effect unless terminated earlier in accordance with this
Article 14.





 



14.2 

Termination prior to Closing.





 



14.2.1 

Termination for Breach. Either
Party shall be entitled to terminate this Agreement at any time
prior to Closing upon written notice if the other Party is in
material breach of its obligations under this
Agreement.





 



14.2.2 

Termination for Delay in Closing. This
Agreement may be terminated at any time by either Party, if the
Closing has not occurred within [***] after the Effective Date. In
case either Party seeks to terminate this Agreement pursuant to
this Section 14.2.2, such Party shall provide [***] written notice
to the other Party, such notice not to be dated prior to the [***]
after the Effective Date.





 



14.2.3 

Termination in view of Governmental
Ruling. This Agreement may be terminated at any time prior
to Closing by any Party not in default, if any Governmental Entity
has issued a final, non-appealable order, decree, or ruling
permanently enjoining or prohibiting the consummation of the
transactions contemplated by this Agreement. A Party seeking to
terminate this Agreement pursuant to this Section 14.2.3 shall
provide [***] written notice to the other Party which shall include
a copy of the writing evidencing such order, decree or
ruling.





 




 

-26-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



14.3 

Termination after Closing.





 




14.3.1 

Termination by BII for
Discontinuation. BII shall have the right, at any time, to terminate this Agreement
if BII, or its Affiliates decide, at their sole discretion, to
discontinue BII’s or its Affiliates’ activities with
regard to the [***], including without limitation the
discontinuation of research, development or commercialization of
the Acquired Assets and/or BII Products, upon [***] prior written
notice to MABVAX.





 




14.3.2 

Termination for Breach of
Covenants. BII shall be entitled to terminate this Agreement
at any time, if MABVAX does not fulfill its contractual obligations
under Article 8 after Closing, and provided MABVAX does not cure
such non-fulfillment of its contractual obligations within [***]
after receipt of written notice from BII regarding such
nonfulfillment. However, such cure is not possible in case of
MABVAX’s non fulfillment of the contractual obligations has
caused an impairment of the Acquired Assets as solely determined by
BII.





 



14.3.3 

Termination for Breach of
Representations and Warranties. Subject to Section 12.1, BII
shall be entitled to terminate the Agreement, if MABVAX is in
breach of any of the representations and warranties given in
Section 7.1, in case of Section 7.1.12 and 7.1.13 only if such
breach would have a Material Adverse Effect, and provided MABVAX
does not cure the alleged breach of such warranty within [***]
after receipt of written notice from BII regarding such breach of
warranty. However, such cure is not possible in case of
MABVAX’s breach of warranty has caused an impairment of the
Acquired Assets as solely determined by BII.





 




14.3.4 

Termination for Breach at any
Time. This Agreement may be terminated at any time after
Closing by any Party, if the other Party (the “Defaulting Party”) is in
default of any of its material obligations under this Agreement,
including without limitation a breach of the confidentiality and
non-use obligations set forth under Article 9 of this Agreement
(“Default”) which Default
remains uncured for [***], each measured from the date written
notice of such Default is provided to the Defaulting Party. The
Party terminating the Agreement based on this Section 14.3.4 (the
“Non-Defaulting
Party”) shall provide written notice to the Defaulting
Party, which notice shall identify the Default, the intent to so
terminate and the actions or conduct that it considers would be an
acceptable cure of such Default. In case the Defaulting Party
disputes the Default under this Section 14.3.4, then the issue of
whether the Non-Defaulting Party may properly terminate this
Agreement on expiration of the applicable cure period shall be
resolved in accordance with Article 13 of this Agreement. If, as a
result of such dispute resolution process, it is determined that
the alleged Defaulting Party committed a Default and that the
Default has not been cured prior to such determination, then the
Agreement, subject to the limitation in this Section 14.3.4, shall
be terminated effective as of the determination unless the
arbitration tribunal as set forth in Article 13 of this Agreement
determines that the Default is of a nature that can be cured within
[***] after the date of such judgment and indicates what minimal
actions need to be completed with such time period (the
“Additional Cure
Period”) to cure the Default. In this latter case, the
termination shall be effective as of the expiration of the
Additional Cure Period unless the Defaulting Party completes the
required actions on or prior to such date. If the Parties dispute
whether such Default was so cured, either Party alone may request
the same court to determine whether it was so cured, and the
Parties shall cooperate to allow such determination to be made
within [***] after such request by either Party. The dispute
resolution proceeding contemplated above in this Section 14.3.4
does not suspend any obligations of either Party hereunder, and
each Party shall use reasonable efforts to mitigate any damages
resulting from a Default. If as a result of such dispute resolution
proceeding it is determined that the alleged Defaulting Party did
not commit the alleged Default (or such Default was cured in
accordance with this Section 14.3.4 prior to or during the
Additional Cure Period), then no termination shall be effective,
and this Agreement shall continue in full force and
effect.





 




 

-27-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 


Notwithstanding
the foregoing, MABVAX shall not have the right to terminate this
Agreement for BII’s Default following [***] and without
prejudice to any other remedies MABVAX may have under Applicable
Law.


 



14.4 

Effects of Termination.





 



14.4.1 

Effects of Termination by MABVAX for
Cause or by BII for Discontinuation. In the event of
termination of this Agreement by (i) MABVAX pursuant to Section
14.3.4, or (ii) BII pursuant to Section 14.3.1, in each case (i)
and (ii):





 



14.4.2 

[***] Termination of this Agreement by BII
for Cause. In the event of termination of this Agreement by
BII pursuant to Sections 14.3.2– 14.3.4, in addition to any
other remedies available to BII at law or in equity, BII may in its
discretion





 


(i)
[***], or

 


[***]
Rights Accruing Prior to
Expiration or Termination. Termination of this Agreement
shall not relieve the Parties of any obligation accruing prior to
such termination. Any termination of this Agreement shall be
without prejudice to the rights of either Party against the other
accrued or accruing under this Agreement or otherwise under
Applicable Law prior to termination, including the obligation to
pay for any amounts that accrued prior to the effective date of
such termination. The damages recoverable by the Non-Defaulting
Party shall include all attorneys’ fees reasonably incurred
by such party.

 



15. 

MISCELLANEOUS





 



15.1 

Applicability. The obligations
and restrictions contained in the provisions of this Agreement
shall apply to any and all consultants, subcontractors, agents,
independent contractors, or other individuals employed by a Party
to achieve performance under this Agreement.





 



15.2 

Assignment. Neither this
Agreement nor any right or obligation hereunder may be assigned or
otherwise transferred, in whole or in part, by any Party without
the prior express written consent of the other Party, such consent
not to be unreasonably withheld or delayed; provided, however, that
a Party may, without the written consent of the others, assign this
Agreement and its rights and obligations hereunder (a) to an
Affiliate provided that the assigning Party shall remain liable for
the performance of such Affiliate, or (b) in connection with a
merger or sale of all or substantially all of the assets of the
assigning Party to which the subject matter of this Agreement
relates, provided that the assignee assumes all of the assigning
Party’s obligations under this Agreement. The terms and
conditions of this Agreement shall be binding upon and inure to the
benefit of the permitted successors and assigns of the
Parties.





 



15.3 

Counterparts. This Agreement
may be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.





 




 

-28-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



15.4 

Covenants and Agreements. All covenants
and agreements of the Parties are subject to all applicable
statutes of limitation, statutes of repose, and other similar
defenses provided by law or equity.





 



15.5 

Entire Agreement. This is the
entire Agreement, including all exhibits and schedules hereto,
between the Parties with respect to the subject matter hereof and
supersedes all prior representations, understanding and agreements
between the Parties with respect to the subject matter hereof.
This Agreement supersedes the Mutual Confidential Disclosure
Agreement between the Parties dated as of February 23, 2018 (the
“CDA”). All confidential
information exchanged between the Parties under the CDA shall be
deemed Confidential Information and shall be subject to the terms
of Article 9. No amendments, modifications, or supplements of this
Agreement or any of the other Transaction Documents shall be valid
or effective unless in writing and executed by duly authorized
representatives of the Parties thereto.





 



15.6 

Schedules; Exhibits. All
Schedules and Exhibits referred to in this Agreement are hereby
incorporated herein and made a part of this Agreement. The fact
that any document, asset, item, action, entity, event, condition,
claim, agreement, or other matter (collectively
“Matters”) is set forth or described or referred to in
any one or more Schedule or Exhibit will not be construed as a
representation, warranty, acknowledgement, or admission by any
Party or as evidence that such Matter is, or may at any time be, or
have been, material or in any way significant to the transactions
contemplated by this Agreement.





 



15.7 

Force Majeure. Neither Party
shall be liable for failure of or delay in performing obligations
set forth in this Agreement, nor shall be deemed in breach of its
obligations to the extent such failure or delay is caused by or
results from causes beyond the reasonable control of the affected
Party, including but not limited to fire, flood, embargo, war, acts
of war (whether war is declared or not), acts of terrorism,
insurrection, riot, civil commotion, acts of God, or intervening
acts, omissions or delays perpetrated by governmental authority;
provided however, that the Party failing or delayed shall use all
reasonable efforts to avoid or remove such causes of failure or
delay, and shall continue to perform hereunder with reasonable
dispatch whenever such causes are removed. Either Party shall
promptly provide the other Party with written notice of any failure
or delay to perform believed to be attributable to force
majeure.





 



15.8 

Survival. Expiration or
termination of this Agreement for any reason shall not relieve a
Party from obligations and duties which (i) by their nature extend
beyond the expiration or termination of this Agreement and (ii)
that are expressly indicated to survive the termination or
expiration of this Agreement. Without limiting the foregoing, the
following provisions shall expressly survive any such expiration or
termination: [***]
Further
Assurances. Each Party agrees to execute, acknowledge and
deliver such further instructions, and to do all such other acts,
as may be necessary or appropriate to carry out the purposes and
intent of this Agreement.





 



15.9 

Governing Law. This Agreement shall be
construed, interpreted and applied in accordance with the laws of
the State New York, excluding its choice of law and conflict of law
provisions.





 



15.10 

Language. This Agreement has
been prepared in the language of English and such language shall
control its interpretation.





 




 

-29-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



15.11 

Notice. Any notices, requests,
consent, and Invoices given under this Agreement shall be in
writing and shall be deemed given (i) upon the date of personal delivery
or by facsimile transmission (receipt verified), provided that such
date is a Business Day and if confirmed by delivery of the hardcopy
original by overnight courier or registered mail; or (ii) [***] after dispatch by overnight
courier; or (iii) [***]
after dispatch of registered or certified mail (return receipt
requested), postage prepaid, in each of subsection (i), (ii) or (iii), above, to the Parties at the
following addresses (or at such other address for a Party as shall
be specified by like notice, provided, however, that notices of a
change of address shall be effective only upon receipt
thereof):





 


If to
MABVAX:


 


11535
Sorrento Valley Road Suite 400


San
Diego, California 92121


USA



[***]


 



With a copy to:


 


[***]


 


If to
BI:


 


[***]



15.12 

Relationship of the Parties. Nothing in
this Agreement is intended or shall be deemed to constitute a
partner, agency, employer-employee, or joint venture relationship
between the Parties. Except as expressly provided in this
Agreement, neither Party shall be deemed as authorized or empowered
to act on behalf of the other Party, nor to bind or commit the
other Party in any manner whatsoever, including but not limited to
incurring expenses, liabilities or obligations.





 



15.13 

Severability. If any provision
of this Agreement is or becomes invalid, is declared illegal by a
court of competent jurisdiction or is deemed unenforceable under
then Applicable Law during the Term, it is the intention of the
Parties that the remainder of this Agreement shall not be affected
thereby, provided that a Party’s rights under this Agreement
are not materially affected negatively. The Parties agree to
renegotiate any such provision or the application thereof in good
faith in order to provide a reasonably acceptable alternative to
the provision or application thereof that is invalid, illegal, or
unenforceable, it being the intent of the Parties that the basic
purposes of this Agreement are to be effectuated.





 



15.14 

Time for Taking Action.
Whenever periods of time are referred to in this Agreement in days,
calendar days are intended unless stated otherwise. When the day or
last day for taking any action is not indicated by a specific date,
but is instead stated as, e.g. “[***] after...”,
and the day or last day falls on a day other than a Business Day,
then the action may be timely taken on the next Business Day
without prejudice to the Party taking action.





 



15.15 

Use of Name. Neither Party
shall employ or use the name, trademarks and logo of the other
Party in any promotional materials or advertising without obtaining
the prior, express written consent of the other Party.





 



15.16 

Waiver. The terms and
conditions of the Transaction Documents may be waived only by a
written instrument executed by duly authorized representatives of
the Party waiving compliance. The failure of either Party at any
time to require performance of any provision hereof shall in no
manner affect its rights at a later time to enforce the same. No
waiver by either Party of any condition or term shall be deemed as
a continuing waiver of such condition or term or as a waiver of
another condition or term.





 


 


 



[Remainder of the Page Intentionally Left Blank]


 




 

-30-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 


IN
WITNESS WHEREOF, THE PARTIES CAUSE THIS AGREEMENT TO BE EXECUTED BY
THEIR DULY AUTHORIZED REPRESENTATIVES:


 


 


	

 

	
MabVax Therapeutics Holdings,
Inc.:    

	

 


	

 

	

 

	

 

	

 


	
July 4, 2018 

	
By:  

	
/s/ 
J. David
Hansen   

	

 


	

 

	

 

	
J. David
Hansen

	

 


	

 

	

 

	

President and
CEO  

	

 







 


 


	

 

	
MabVax Therapeutics, Inc.

	

 


	

 

	

 

	

 

	

 


	
July 4, 2018

	
By:  

	
/s/  J. David
Hansen

	

 


	

 

	

 

	
J. David
Hansen

	

 


	

 

	

 

	

President and
CEO

	

 







 


 


	

 

	
Boehringer
Ingelheim International GmbH:

	

 


	

 

	
ppa 

	

 


	

 

	

 

	

 

	

 


	
July 4,
2018

	
By:  

	
/s/ 
Marc
Wittstock 

	

 


	

 

	

 

	
Marc
Wittstock 

	

 


	

 

	

 

	

(Authorized
Signatory) 

	

 







 


 


	

 

	

Boehringer Ingelheim International GmbH

	

 


	

 

	

ppa 

	

 


	

 

	

 

	

 

	

 


	
July 4,
2018

	
By:  

	
/s/ 
Martin
Mauer

	

 


	

 

	

 

	
Martin
Mauer

	

 


	

 

	

 

	

(Authorized
Signatory)

	

 







 


 


 


 


 


 


 


Exhibits



Exhibit
A:                                         

Form of Assignment
and Assumption Agreement







Exhibit
B:                                         

Form of Bill of
Sale







Exhibit
C:                                         

[***] Patent
Assignment







Exhibit
D:                                         

Press
Release






 


Schedules:


 



Schedule
1.1.26:                                         

Executive
Officials







Schedule
1.1.37:                                         

Invoice
Requirements







Schedule
1.1.63:                                         

[***]
Patents







Schedule
7.1.2:                                         

Finder’s
Fee







[***]


 




 

-31-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 







Exhibit A

 



Assignment and Assumption Agreement

 



ASSIGNMENT AND ASSUMPTION AGREEMENT

 


 


This ASSIGNMENT AND ASSUMPTION AGREEMENT
(this “Assignment
Agreement”) is made as of July 5, 2018, by and between
MabVax Therapeutics Holdings,
Inc., a corporation organized and existing under the laws of
Delaware, USA, having its principal place of business at 11535
Sorrento Valley Road, Suite 400, San Diego, California 92121,
MabVax Therapeutics, Inc., a
corporation organized and existing under the laws of Delaware, USA,
having its principal place of business at 11535 Sorrento Valley
Road, Suite 400, San Diego, California 92121, (MabVax Therapeutics
Holdings, Inc., and MabVax Therapeutics, Inc. collectively referred
to as “Seller”) and Boehringer Ingelheim International
GmbH, having a
principal place of business at Binger Strasse 173, 55216 Ingelheim,
Germany, (“Buyer”).

 


WHEREAS, Seller and Buyer entered into
that certain Asset Purchase and License Agreement, dated as of July
4, 2018 (the “Asset
Purchase and License Agreement”); and

 


WHEREAS, pursuant to the Asset Purchase
and License Agreement, Seller has agreed to sell, convey, transfer,
assign and deliver to Buyer all of Seller’s right, title and
interest in, to and under the Acquired Assets, and Buyer has agreed
to assume, timely perform and discharge in accordance with their
respective terms, the Assumed Liabilities.

 


NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, it is
hereby agreed that:

 


1.           Definitions.
Unless otherwise defined herein, all capitalized terms used in this
Assignment Agreement shall have the meanings set forth in the Asset
Purchase and License Agreement.

 


2.           Assignment
of Acquired Assets. Effective as of the Closing Date, Seller
hereby sells, conveys, transfers, assigns and delivers to Buyer all
of Seller’s right, title and interest in, to and under the
Acquired Assets free and [***], and Buyer hereby accepts such sale,
conveyance, transfer, assignment and delivery from Seller;
provided, however, that the
tangible Acquired Assets are being specifically assigned and
transferred pursuant to the Bill of Sale and any other Acquired
Assets that are specifically assigned or transferred pursuant to
any other Transaction Document are being specifically assigned and
transferred pursuant to such other Transaction Documents and, in
each case, shall not be assigned or transferred pursuant to this
Section
2.

 


3.           Assumption
of Assumed Liabilities. Effective as of the Closing Date,
Buyer hereby assumes, accepts and agrees to timely perform and
discharge in accordance with their respective terms any and all of
the Assumed Liabilities; provided,
however, that any Assumed Liabilities that are specifically
assumed by Buyer pursuant to any other Transaction Document shall
not be assumed pursuant to this Section 3.

 




 

-32-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 


4.           Subject
to the Asset Purchase and License Agreement. This Assignment
Agreement is subject in all respects to the terms and conditions of
the Asset Purchase and License Agreement, and all of the
representations, warranties, covenants and agreements of the Seller
and Buyer contained therein, all of which shall survive the
execution and delivery of this Assignment Agreement in accordance
with the terms of the Asset Purchase and License Agreement. Nothing
in this Assignment Agreement shall supersede, amend, alter or
modify (nor shall it be deemed or construed to supersede, amend,
alter or modify) any of the terms or conditions of the Asset
Purchase and License Agreement in any manner whatsoever. In the
event of any conflict between the provisions of this Assignment
Agreement and the provisions of the Asset Purchase and License
Agreement, the provisions of the Asset Purchase and License
Agreement shall control and prevail.

 


5.           Representations
and Warranties. Except as set forth in the Asset Purchase
and License Agreement, the Seller makes no representations or
warranties, express or implied, with respect to the Acquired Assets
or the Assumed Liabilities, and the Seller expressly disclaims any
implied warranties.

 


6.           Successors
and Assigns. Except as otherwise set forth in Section 15.2
of the Asset Purchase and License Agreement, no assignment of this
Assignment Agreement or of any rights or obligations hereunder may
be made by Seller or Buyer, directly or indirectly (by operation of
law or otherwise), without the prior written consent of the other
party hereto and any attempted assignment without the required
consents shall be null and void and without any legal effect This
Assignment Agreement shall be binding upon and inure to the benefit
of the parties and their respective permitted successors and
assigns.

 


7.           Counterparts.
This Assignment Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same
instrument.

 


8.           Amendments;
Waiver. This Assignment Agreement may be amended,
supplemented or modified in whole or in part if, but only if, such
amendment, supplement or modification is in writing and is signed
by each party and specific reference to this Assignment Agreement
is made. Any provision of this Assignment Agreement may be waived
if, but only if, such waiver is in writing and is signed by the
party or parties against whom enforcement of any such waiver is
sought and specific reference to this Assignment Agreement is made.
The waiver by any party hereto of a breach of any provision of this
Assignment Agreement shall not operate or be construed as a further
or continuing waiver of such breach or as a waiver of any other or
subsequent breach. No failure on the part of any party to exercise,
and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of such right, power or remedy by such party preclude any
other or further exercise thereof or the exercise of any other
right, power or remedy.

 


9.           Severability.
If any provision of this Assignment Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other
provisions of this Assignment Agreement shall remain in full force
and effect. The parties further agree that if any provision
contained herein is, to any extent, held invalid or unenforceable
in any respect under the Applicable Laws governing this Assignment
Agreement, they shall take any actions necessary to render the
remaining provisions of this Assignment Agreement valid and
enforceable to the fullest extent permitted by Applicable Law and,
to the extent necessary, shall amend or otherwise modify this
Assignment Agreement to replace any provision contained herein that
is held invalid or unenforceable with a valid and enforceable
provision giving effect to the intent of the parties to the
greatest extent legally permissible.

 


10.           Governing
Law; Jurisdiction. This Agreement shall be construed,
interpreted and applied in accordance with the laws of the State
New York, excluding its choice of law and conflict of law
provisions.

 



SIGNATURE PAGES FOLLOW

 


 




 

-33-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 


 


IN WITNESS WHEREOF, the parties hereto
have caused this Assignment Agreement to be executed by their
respective officers thereunto duly authorized as of the date first
above written.

 


 


	
 

	


Seller:


 

 


 

 


 

 


 

	
 


	
 

	


MabVax Therapeutics Holdings, Inc.


 

	
 


	
 

	

By:

	

/s/ J.
David Hansen

	
 


	

Name:

	

J.
David Hansen

	
 


	

 


Title:

	

 


President
and CEO

	
 


	

 


Date:

	

 


July 4,
2018

	
 


	
 

	

MabVax
Therapeutics, Inc.

	
 


	
 

	

By:

	

/s/ J.
David Hansen

	
 


	
 

	

Name:

	

J.
David Hansen

	
 


	
 

	

 


Title:

	

 


President and
CEO

	
 


	
 

	

 


Date:

	

 


July 4,
2018

	
 







 


 




 

-34-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 


	
 

	


Buyer:


 

 


 

 


 

 


 

	
 


	
 

	


Boehringer Ingelheim International GmbH


ppa.


 

	
 


	
 

	

By:

	

/s/
Marc Wittstock

	
 


	

Name:

	

Marc
Wittstock

	
 


	

 


Title:

	

 


(Authorized
Signatory)

	
 


	

 


Date:

	

 


July 4,
2018

	
 







 


 


	
 

	
 

	
 


	
 

	


Boehringer Ingelheim International GmbH


ppa.


 

	
 


	
 

	

By:

	

/s/
Martin Mauer

	
 


	

 


Name:

	

 


Martin
Mauer

	
 


	

 


Title:

	

(Authorized
Signatory)

	
 


	

 


Date:

	

July 4,
2018

	
 


	
 

	
 

	
 


	
 

	
 

	
 








[Signature Page Exhibit A to Asset Purchase and License Agreement
between MabVax Therapeutics Holdings Inc., MabVax Therapeutics
Inc., and Boehringer Ingelheim International GmbH, dated July 4,
2018]

 




 

-35-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 






 



Exhibit B

 



Bill of Sale

 



BILL OF SALE


 


This BILL OF SALE (this
“Bill of
Sale”) is made as of July 5, 2018, by and between
MabVax Therapeutics Holdings,
Inc., a corporation organized and existing under the laws of
Delaware, USA, having its principal place of business at 11535
Sorrento Valley Road, Suite 400, San Diego, California 92121,
MabVax Therapeutics, Inc., a
corporation organized and existing under the laws of Delaware, USA,
having its principal place of business at 11535 Sorrento Valley
Road, Suite 400, San Diego, California 92121, (MabVax Therapeutics
Holdings, Inc., and MabVax Therapeutics, Inc. collectively referred
to as “Seller”) and Boehringer
Ingelheim International GmbH, having a principal place of business
at Binger Strasse 173, 55216 Ingelheim, Germany,
(“Buyer”).

 


WHEREAS, Seller and Buyer entered into
that certain Asset Purchase and License Agreement, dated as of July
4, 2018 (the “Asset
Purchase and License Agreement”); and

 


WHEREAS, pursuant to the Asset Purchase
and License Agreement, Seller has agreed to sell, convey, transfer,
assign and deliver to Buyer all of the Acquired Assets, and Buyer
has agreed to purchase the Acquired Assets from
Seller.

 


NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, it is
hereby agreed that:

 


1.           Definitions.
Unless otherwise defined herein, all capitalized terms used in this
Bill of Sale shall have the meanings set forth in the Asset
Purchase and License Agreement.

 


2.           Transfer
of Assets. Effective as of the Closing Date, Seller hereby
sells, conveys, transfers, assigns and delivers to Buyer all of
Seller’s right, title and interest in, to and under the
tangible Acquired Assets free and clear of Encumbrances, and Buyer
hereby purchases such tangible Acquired Assets and accepts such
conveyance, transfer, assignment and delivery; provided, however, that any Acquired
Assets that are specifically assigned or transferred pursuant to
any other Transaction Document shall not be assigned or transferred
pursuant to this Section
2.

 


3.           Subject
to the Asset Purchase and License Agreement. This Bill of
Sale is subject in all respects to the terms and conditions of the
Asset Purchase and License Agreement, and all of the
representations, warranties, covenants and agreements of the Seller
and Buyer contained therein, all of which shall survive the
execution and delivery of this Bill of Sale in accordance with the
terms of the Asset Purchase and License Agreement. The Acquired
Assets are being delivered for good and valuable consideration,
pursuant to the terms and conditions contained in the Asset
Purchase and License Agreement. Nothing contained herein shall
supersede, amend, alter or modify (nor shall it be deemed or
construed to supersede, amend, alter or modify) any of the terms or
conditions of the Asset Purchase and License Agreement in any
manner whatsoever. In the event of any conflict between the
provisions of this Bill of Sale and the provisions of the Asset
Purchase and License Agreement, the provisions of the Asset
Purchase and License Agreement shall control and
prevail.

 




 

-36-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  









 
CONFIDENTIAL TREATMENT
REQUESTED

 






 


4.           Representations
and Warranties. Except as set forth in the Asset Purchase
and License Agreement, Seller makes no representations or
warranties, express or implied, with respect to the Acquired
Assets, and Seller expressly disclaims any implied
warranties.

 


5.           Successors
and Assigns. Except as otherwise set forth in Section 15.2
of the Asset Purchase and License Agreement, no assignment of this
Bill of Sale or of any rights or obligations hereunder may be made
by Seller or Buyer, directly or indirectly (by operation of law or
otherwise), without the prior written consent of the other party
hereto and any attempted assignment without the required consents
shall be null and void and without any legal effect This Bill of
Sale shall be binding upon and inure to the benefit of the parties
and their respective permitted successors and assigns.

 


6.           Counterparts.
This Bill of Sale may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.

 


7.           Amendments;
Waiver. This Bill of Sale may be amended, supplemented or
modified in whole or in part if, but only if, such amendment,
supplement or modification is in writing and is signed by each
party and specific reference to this Bill of Sale is made. Any
provision of this Bill of Sale may be waived if, but only if, such
waiver is in writing and is signed by the party or parties against
whom enforcement of any such waiver is sought and specific
reference to this Bill of Sale is made. The waiver by any party
hereto of a breach of any provision of this Bill of Sale shall not
operate or be construed as a further or continuing waiver of such
breach or as a waiver of any other or subsequent breach. No failure
on the part of any party to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right,
power or remedy by such party preclude any other or further
exercise thereof or the exercise of any other right, power or
remedy.

 


8.           Severability.
If any provision of this Bill of Sale is held invalid or
unenforceable by any court of competent jurisdiction, the other
provisions of this Bill of Sale shall remain in full force and
effect. The parties further agree that if any provision contained
herein is, to any extent, held invalid or unenforceable in any
respect under the Applicable Laws governing this Bill of Sale, they
shall take any actions necessary to render the remaining provisions
of this Bill of Sale valid and enforceable to the fullest extent
permitted by Applicable Law and, to the extent necessary, shall
amend or otherwise modify this Bill of Sale to replace any
provision contained herein that is held invalid or unenforceable
with a valid and enforceable provision giving effect to the intent
of the parties to the greatest extent legally
permissible.

 


9.           Governing
Law; Jurisdiction. This Agreement shall be construed,
interpreted and applied in accordance with the laws of the State
New York, excluding its choice of law and conflict of law
provisions.

 


 

 



SIGNATURE PAGES FOLLOW

 


 


 




 

-37-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











                                                                                                                          









CONFIDENTIAL TREATMENT
REQUESTED

 


 






IN WITNESS WHEREOF, the parties hereto
have caused this Bill of Sale to be executed by their respective
officers thereunto duly authorized as of the date first above
written.

 


 

 


	
 

	


Seller:


 

 


 

 


 

 


 

	
 


	
 

	


MabVax Therapeutics Holdings, Inc.


 

	
 


	
 

	

By:

	

/s/ J.
David Hansen

	
 


	

Name:

	

J.
David Hansen

	
 


	

 


Title:

	

 


President
and CEO

	
 


	

 


Date:

	

 


July 4,
2018

	
 


	
 

	

MabVax
Therapeutics, Inc.

	
 


	
 

	

By:

	

/s/ J.
David Hansen

	
 


	
 

	

Name:

	

J.
David Hansen

	
 


	
 

	

 


Title:

	

 


President and
CEO

	
 


	
 

	

 


Date:

	

 


July 4,
2018

	
 







 


 




 

-38-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











 







CONFIDENTIAL TREATMENT
REQUESTED

 






 


	
 

	


Buyer:


 

 


 

 


 

	
 


	
 

	


Boehringer Ingelheim International GmbH


ppa.


 

	
 


	
 

	

By:

	

/s/
Marc Wittstock

	
 


	

 


Name:

	

Marc
Wittstock

	
 


	

 


Title:

	

 


(Authorized
Signatory)

	
 


	

 


Date:

	

July 4,
2018

	
 







 


 


	
 

	
 

	
 


	
 

	


Boehringer Ingelheim International GmbH


ppa.


 

	
 


	
 

	

By:

	

/s/
Martin Mauer

	
 


	

Name:

	

Martin
Mauer

	
 


	

 


Title:

	

 


(Authorized
Signatory)

	
 


	

 


Date:

	

 


July 4,
2018

	
 


	
 

	
 

	
 


	
 

	
 

	
 


	
 

	
 

	
 








[Signature Page Exhibit B to Asset Purchase and License Agreement
between MabVax Therapeutics Holdings Inc., MabVax Therapeutics
Inc., and Boehringer Ingelheim International GmbH, dated July 4,
2018]

 



Exhibit C

 


 



[***] Patent
Assignment


 




 

-39-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











 







CONFIDENTIAL TREATMENT
REQUESTED

 


 






 


Pursuant
to the Asset Purchase and License Agreement by and between
Boehringer Ingelheim International
GmbH, Binger Strasse 173, 55216 Ingelheim, Germany
(“BII”),
MabVax Therapeutics Holdings,
Inc., a corporation organized
and existing under the laws of Delaware, USA, having its principal
place of business at 11535 Sorrento Valley Road, Suite 400, San
Diego, California 92121, MabVax
Therapeutics Inc., a corporation organized and existing
under the laws of Delaware, USA, having its principal place of
business at 11535 Sorrento Valley Road, Suite 400, San Diego,
California 92121 (MabVax Therapeutics Holdings, Inc. and
MabVax Therapeutics Inc. collectively referred to as
“MABVAX”), and regarding MABVAX ́s assets [***],
effective July 4, 2018 (the “Agreement”), for good and
valuable consideration to them paid by BII, invoiced as of this
Closing Date, MABVAX hereby assigns as of the Closing Date to BII
the full and entire property, right and title in [***] Patents
listed in Schedule 1.1.63 of the Agreement [***], a copy of which
is attached hereto for reference, so that BII may enjoy the full
benefits and all the rights resulting therefrom without
restriction.


 


Subject
to the Agreement, MABVAX hereby authorizes BII to take any and all
actions in connection with the Patents, in BII ́s own name and
at BII ́s sole expense.


 


 



MABVAX Therapeutics Holdings, Inc.


 



By:              

___/s/ J. David Hansen
__________






 



Name:                       

__J. David
Hansen______________






 



Title:              

___President and
CEO___________






 



Date:              

____July 4, 2018
_______________






 




MABVAX Therapeutics, Inc.


 



By:              

__/s/ J. David
Hansen___________






 



Name:                       

____J. David
Hansen____________






 



Title:              

_President and
CEO_____________






 



Date:              

__July 4, 2018
_________________






 


 


 


 


 


 


 


 


 


 


 


 


 






 

-40-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  











CONFIDENTIAL TREATMENT
REQUESTED

 







Boehringer Ingelheim International GmbH


 



ppa.            

/s/ Marc
Wittstock






 



By:              

__Marc
Wittstock____________






 



Name:                       

Marc
Wittstock






 



Title:              

(Authorized
Signatory)






 



Date:              

July 4,
2018






 


 


 



Boehringer Ingelheim International GmbH


 



ppa.            

/s/ Martin
Mauer






 



By:              

__ Martin
Mauer_____________






 



Name:                       

Martin
Mauer






 



Title:              

(Authorized
Signatory)






 



Date:              

July 4,
2018






 



[Signature Page Exhibit C to Asset Purchase and License Agreement
between MabVax Therapeutics Holdings Inc., MabVax Therapeutics
Inc., and Boehringer Ingelheim International GmbH, dated July 4,
2018]

 


 




 

-41-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 


 



Exhibit D


 



Press Release



 



MabVax Therapeutics and Boehringer Ingelheim Sign Asset Purchase
and License Agreement and Related Agreements for an Antibody
Development Program Targeting Multiple Solid Tumor
Cancers

 


 


SAN
DIEGO, CA – July
9, 2018 – MabVax
Therapeutics Holdings, Inc. (Nasdaq: MBVX), a clinical-stage
oncology drug development company and Boehringer Ingelheim today
announced they have signed an asset acquisition and related
agreements centered on MabVax’s program targeting a glycan
commonly overexpressed on multiple solid tumor cancers. Boehringer
Ingelheim has acquired all
rights in and to the program.

 


MabVax
will receive a total of US $11 million in upfront and near term
milestones as well as downstream regulatory milestone payments plus
further earn-out payments. The asset acquisition is separate and
distinct from other programs under development at MabVax, enabling
MabVax to retain all rights to its lead HuMab-5B1antibody program
which is in Phase 1 clinical trials as a therapeutic product and as
a diagnostic product, as well as other antibody discovery programs
from the Company’s rich antibody discovery portfolio
targeting other cancer antigens.


 


MabVax
discovered the antibody series at the center of this transaction
from biological samples, originally from patients who were
vaccinated against their solid tumors with a glycan
antigen-containing vaccine. The discovery of fully human antibodies
directly from vaccinated cancer patients has potential advantages
which include greater specificity and reduced toxicities. MabVax
completed and has reported on early preclinical development
activities to establish the utility of the program.

 


“We
are very pleased to have Boehringer Ingelheim as a major industry
partner to further develop one of our preclinical antibody assets
based on our proprietary HuMab technology,” said David
Hansen, President and CEO of MabVax Therapeutics. “This agreement with Boehringer
Ingelheim recognizes the value of our innovative approach to
discovering novel antibodies to diagnose and treat cancer.
We have been committed since the founding of the Company to
discovering and developing unique fully human antibodies to
diagnose and treat patients with cancers where there remain
significant unmet medical needs.”

 


 




 

-42-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 



About MabVax:


 


MabVax
Therapeutics Holdings, Inc. is a clinical-stage biotechnology
company with a fully human antibody discovery platform focused on
the rapid translation into clinical development of products to
address unmet medical needs in the treatment of cancer. Our
antibody MVT-5873, is a fully human IgG1 monoclonal antibody (mAb)
that targets sialyl Lewis A (sLea), an epitope on CA19-9, and is
currently in Phase 1 clinical trials as a therapeutic agent for
patients with pancreatic cancer and other CA19-9 positive tumors.
CA19-9 is expressed in over 90% of pancreatic cancers and in other
diseases including small cell lung and GI cancers. CA19-9 plays an
important role in tumor adhesion and metastasis, and is a marker of
an aggressive cancer phenotype. CA19-9 serum levels are considered
a valuable adjunct in the diagnosis, prognosis and treatment
monitoring of pancreatic cancer. With our collaborators including
Memorial Sloan Kettering Cancer Center, Sarah Cannon Research
Institute, Honor Health and Imaging Endpoints, we have treated over
56 patients with either our therapeutic antibody designated as
MVT-5873 or our PET imaging diagnostic product designated as
MVT-2163 in Phase 1 clinical studies, and demonstrated early safety
and specificity for the target. Patient dosing is continuing in
Phase 1 clinical studies of MVT-5873 in combination with
nab-paclitaxel and gemcitabine to patients newly diagnosed with
CA19-9 positive pancreatic cancer, and for the Company's
radioimmunotherapy product MVT-1075. Other discovery programs at
MabVax are in preclinical development. For additional information,
please visit the Company's website, www.mabvax.com.


 



Forward Looking Statements

 


This
press release contains “forward-looking statements”
regarding matters that are not historical facts, including
statements relating to the asset acquisition and related agreements
centered on the undisclosed program, and what programs remain at
MabVax that continue to be under development in the Company’s
development pipeline. We have no assurance that all of the product
development pipeline will be fully developed by the Company.
Because such statements are subject to risks and uncertainties,
actual results may differ materially from those expressed or
implied by such forward-looking statements. Words such as
"anticipates," "plans," "expects," "intends," "will," "potential,"
“hope” and similar expressions are intended to identify
forward-looking statements. These forward-looking statements are
based upon current expectations of the Company and involve
assumptions that may never materialize or may prove to be
incorrect. Actual results and the timing of events could differ
materially from those anticipated in such forward-looking
statements as a result of various risks and uncertainties. Detailed
information regarding factors that may cause actual results to
differ materially from the results expressed or implied by
statements in this press release relating to the Company may be
found in the Company’s periodic filings with the Securities
and Exchange Commission, including the factors described in the
section entitled “Risk Factors” in its annual report on
Form 10-K for the fiscal year ended December 31, 2017, as amended
and supplemented from time to time and the Company's Quarter Reports on Form
10-Q and other filings submitted by the Company to the SEC, copies
of which may be obtained from the SEC's website at
www.sec.gov. The parties do not undertake
any obligation to update forward-looking statements contained in
this press release.

 



Investor Contact:



Email: MabVaxIR@mabvax.com


 



Media Contact:


Russo
Partners LLC


Phone:
212-845-4272


Email:
travis.kruse@russopartnersllc.com


 




 

-43-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  









Schedule 1.1.26


 



Executive Official


 


 


 



1.            

For MABVAX: David
Hansen, CEO






 


 


 



2.            

For BII: Dr. Clive
Wood, Corporate Senior Vice President, Discovery
Research






 


 


 


 


 


 


 


 


 




 

-44-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  









Schedule
1.1.37



Invoice Requirements


 


[***]


 


 




 

-45-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 

 


 

 


 



Schedule 1.1.63

 


[***]


 


	


COUNTRY

	


SERIAL NO.

	


Attorney Docket NO.

	


ASSIGNEE

	


INVENTORS

	


PRIORITY FILING DATE


	

[***]

	

[***]

	

[***]

	

[***]

	

[***]

	

[***]


	

[***]

	

[***]

	

[***][***]

	

[***][***]

	

[***]

	

[***]


	

[***]

	

[***]

	

[***][***]

	

[***][***]

	

[***]

	

[***]







 


 

 


 




 

-46-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 



Schedule 7.1.2


 



Finder’s Fee


 


 


Greenhill & Co.
LLC , [***], 300 Park Ave, New York, NY 10022 (borne by
MABVAX)


 




 

-47-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 


 



Schedule 11.4


 



Side Agreement


 


 


 



AGREEMENT


 


 


 



by and between


 


 


 


 



BOEHRINGER INGELHEIM INTERNATIONAL GMBH


 


 



and


 


 


[***]


 



and


 


 



MABVAX THERAPEUTICS HOLDINGS, INC.


 



and


 


 



MABVAX THERAPEUTICS, INC.


 


 


 


 


 


 


 



BII Contract No [***]


 




 

-48-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 

 


This
Agreement (the “Agreement”) is made on July 4,
2018 (the “Effective
Date”) under the terms and conditions herein by and
between Boehringer Ingelheim
International GmbH having a principal place of business at
Binger Strasse 173, 55216 Ingelheim, Germany, (hereinafter referred
to as “BII”),
[***] MabVax Therapeutics Holdings, Inc., a
corporation organized and existing under the laws of Delaware, USA,
having its principal place of business at 11535 Sorrento Valley
Road, Suite 400, San Diego, California 92121, and MabVax Therapeutics, Inc., a
corporation organized and existing under the laws of Delaware, USA,
having its principal place of business at 11535 Sorrento Valley
Road, Suite 400, San Diego, California 92121, (MabVax Therapeutics
Holdings, Inc. and MabVax Therapeutics, Inc. hereinafter
collectively referred to as “MabVax”). BII, [***] MabVax are
referred to individually as a "Party" and collectively as the
"Parties."


 


 



WHEREAS, BII and MabVax have entered into an Asset Purchase
and License Agreement on July 4, 2018 (the “BII/MabVax
Agreement”), attached hereto in Appendix 1.

 


 

 



WHEREAS, all terms defined in this Agreement are used with
those meanings in this Agreement. Capitalized terms not defined in
this Agreement are used with the meanings as defined in the
BII/MabVax Agreement.

 


 

 



WHEREAS, under the BII/MabVax Agreement, MabVax sells,
conveys, assigns and transfers to BII, and BII acquires from
MabVax, certain of MabVax’s assets solely and exclusively
related to MabVax’s TN Program, as further defined in the
BII/MabVax Agreement as Acquired Assets.

 


 

 



WHEREAS, MabVax Therapeutics Inc. [***]

 


 

 



NOW, THEREFORE, the Parties hereby agree as
follows:

 


 


 



1. 

MabVax agrees and
acknowledges [***], as amended, MabVax shall continue to be
responsible for all of its obligations therein, including but not
limited to any and all payment obligations due by MabVax to [***]).
..






 

 



2. 

BII agrees that in
the event that [***] expires or is terminated for any reason,
including but not limited to bankruptcy or liquidation of MabVax
and subject to Section 3 below, BII’s obligations to MabVax
Therapeutics Holdings Inc. under the following Sections of the
BII/MabVax Agreement shall [***]:






 



a. 

Section 5.3: All
[***];






 

 



b. 

Section 5.4: All
[***]






 



c. 

Section 5.4.5: BII shall [***]
described in Section 5.4.5 of the BII/MabVax
Agreement.






 

 



d. 

Sections 5.5 – 5.9: All
payment obligations [***].






 




 

-49-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 


 

 



3. 

Notwithstanding
anything to the contrary, BII [***] MabVax agree that
[***].






 

 


For
avoidance of doubt, [***]



4. 

[***] will not
assert against [***] any [***] in accordance with the above Section
2.






 

 



5. 

This Agreement
shall be construed, interpreted and applied in accordance with the
laws of the State New York, excluding its choice of law and
conflict of law provisions. Any dispute which has not been resolved
amicably by BII, MabVax [***], as applicable, shall be escalated to
the applicable executive official level employee of each BII, [***]
MabVax. Said employees shall use further good faith efforts to
reach resolution on such dispute within [***].






 

 



6. 

If BII, MabVax
[***], as applicable do not reach resolution on such dispute within
such [***] period, [***] to settle the dispute by mediation,
administered by the American Arbitration Association (the
“AAA”) under its Commercial Mediation Procedures,
before resorting to the arbitration procedure set forth in Section
8 below. BII, MabVax and/or [***], as applicable, may initiate
mediation upon written notice to the other party(ies) and the AAA
("Mediation Notice Date"), whereupon the respective parties shall
be obligated to engage in a mediation proceeding. The mediation
shall commence within [***] of the Mediation Notice Date. The
mediation shall be conducted by a single mediator in New York, New
York. The party requesting mediation shall designate two (2) or
more nominees for mediator in its notice. The other party(ies) may
accept one of the nominees or may designate its own nominees by
notice addressed to the AAA and to the requesting party. If within
[***] following the Mediation Notice Date, the parties to the
dispute have not selected a mutually acceptable mediator, a
mediator shall be appointed by the AAA according to the Commercial
Mediation Rules. The mediator shall attempt to facilitate a
negotiated settlement of the dispute, but shall have no authority
to impose any settlement terms on the parties to the dispute. The
expenses of the mediation shall be borne equally by the parties to
such mediation, but each party shall be responsible for its own
counsel fees and expenses. BII, MabVax [***] acknowledge that the
existence, content, or results of a dispute under such mediation
shall not be disclosed without the prior written consent of BII,
MabVax [***], as applicable.






 

 



7. 

Any dispute which
has not been resolved by the procedures set forth in Sections 6 or
7 above shall be finally resolved by binding arbitration in
accordance with the ICC arbitration rules by three (3) arbitrators.
Place of such arbitration shall be New York, New York. The language
of the arbitration proceeding shall be English. Except to the
extent necessary to confirm or obtain judgment on an award or
decision or as may be required by Applicable Law, neither BII,
MabVax [***], as applicable, may, and BII, MabVax [***] shall
instruct the arbitrators not to, disclose the existence, content,
or results of a dispute without the prior written consent of the
parties to such arbitration.






 

 



8. 

The existence, and
the terms, of this Agreement are strictly confidential. No
disclosure of the existence, and/or the terms, of this Agreement
may be made by either Party, and no Party shall use the name,
trademark, trade name or logo of the other Party, its affiliates or
their respective employees in any publicity, promotion, news
release or disclosure relating to this Agreement or its subject
matter, without the prior express written permission of the other
Party, except as may be required by applicable law or securities
exchange regulations.






 

 



9. 

This is the entire
Agreement, including all exhibits and schedules hereto, between the
Parties with respect to the subject matter hereof and supersedes
all prior representations, understanding and agreements between the
Parties with respect to the subject matter hereof.






 



10. 

If any provision of
this Agreement is or becomes invalid, is declared illegal by a
court of competent jurisdiction or is deemed unenforceable under
then applicable law during the Term, it is the intention of the
parties that the remainder of this Agreement shall not be affected
thereby, provided that a party’s rights under this Agreement
are not materially affected negatively. The Parties agree to
renegotiate any such provision or the application thereof in good
faith in order to provide a reasonably acceptable alternative to
the provision or application thereof that is invalid, illegal, or
unenforceable, it being the intent of the parties that the basic
purposes of this Agreement are to be effectuated.






 

 



11. 

This Agreement may
be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.






 


 

 

 


 

 


 



[Remainder of the Page Intentionally Left Blank]


 




 

-50-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 


IN
WITNESS WHEREOF, THE PARTIES CAUSE THIS AGREEMENT TO BE EXECUTED BY
THEIR DULY AUTHORIZED REPRESENTATIVES:

 


 

 


 

 


Ingelheim,_____July
4, 2018____________

 


(date)

 


 

 



Boehringer Ingelheim International GmbH

 


 

 


 

 

ppa.                                                      
ppa.

 


 

 


 

 


 

 

___/s/ Marc
Wittstock______                                                                           
__/s/ Martin Mauer________

 

Name:  Marc
Wittstock                                                      

 

Authorized
Signatory                                                                
Authorized Signatory

 


 

 

Date:
____July 4,
2018______                                                                           
[Place] New York, July 5, 2018

 


 


	
 


 

 


 

 


 



MabVax Therapeutics Holdings Inc.

 


 

 


 

 


 


/s/ J.
David Hansen


_______________________


Name:
J. David Hansen


Authorized
Signatory

 


 

 


 

 


 

 


 

 


 


[Place],___July
4, 2018__________


(date)

 


 



MabVax Therapeutics Inc.

 


 


/s/ J.
David Hansen


_______________________


Name:
J. David Hansen


Authorized
Signatory

	
 


 

 


 

 


 



[***]

 


 

 


 

 


 


[***]


_______________________


Name:
[***]


Authorized
Signatory







 


 




 

-51-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.



  










 





CONFIDENTIAL TREATMENT
REQUESTED

  








 



Appendix 1



Asset Purchase and License Agreement


 


 


 




 

-52-

 




 

Portions of this Exhibit, indicated by the mark
“[***],” were omitted and have been filed separately
with the Secretary of the Commission pursuant to the
Registrant’s application requesting confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended.